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INTERNATIONAL COURTOFJUSTICE
LEGALCONSEQUENCESOFTHE CONSTRUCTION
OFAWALLIN THE OCCUPIEDPALESTINIAN
TERRITORY
(REQUESTFORANADVISORYOPINION)
WRITTENSTATEMENT
SUBMITTEDBY
PALESTINE
30 JANUARY2004 INTERNATIONAL COURT OF JUSTICE
LEGALCONSEQUENCESOF THE CONSTRUCTION
OF A WALL IN THE OCCUPIED PALESTINIAN
TERRITORY
(REQUEST FOR AN ADVISORY OPINION)
WRITTEN STATEMENT
SUBMITTEDBY
PALESTINE
30 JANUA2004TABLEOF CONTENTS
Page
PART A. INTRODUCTIONAND COMPETENCE
CHAPTER1. INTRODUCTION ................................................
.......................
THETERMS OF THE REQUEST
(1)
(2) SCOPE OF THEPRESEN TEQUEST
(3) TERMINOLOGY
(4) STRUCTUR OFETHISWRITTEN STATEMENT
CHAPTER2. THE COURTIS COMPETENTTO GIVE THE ADVISORY OPINION
REQUESTED,AND THERE ARE NO COMPELLING REASONS
PREVENTING THE COURTFROM GIVINGITS OPINION ....................
(1) THECOURT IS COMPETENT TO GIVE THE REQUESTEDADVISORY OPINION
(a) Jurisdictionrationepersonae: the request was made by a duiy authorizedorgan
(b) TheResolution was validly adoptedfiom theproceduralpoint of view
(c) TheResolution adopting the request was intra viresthe Assembiy
(4 Jurisdiction rationemateriae: the Court is asked togive an opinion on a legal question
(2) THERE ARE NO COMPELLING REASONS PREVENTING THECOURT FROM GIVING THE REQUESTED
ADVISORY OPINION
(a) The questionputo the Court is both urgent and relevant, and is likeiy to have apractical
and contemporaryeffect
(b) TheEastern CareliaCase is distinguishablefrom thepresent case
(c) Thegiving of an advisoryopinions not depend on the consent of anyparticular State or
group of States, andno State canprevent thegiving of anopinion
The mere fact that the question may have been politically motivated cannot prevent the
(4
Courtfrom renderingts advisoryopinion
PART B. FACTUAL BACKGROUND ...........................................35...
................
CHAPTER3. A CHRONOLOGYOF THE MAIN EVENTS CONCERNING PALESTINE
(1) THETERRITOR YF PALESTINE
CHAPTER4. ISRAEL'SATTEMPTS TO CHANGE THE LEGAL STATUS OF THE
OCCUPIED PALESTINIAN TERRITORY, INCLUDING EASTJERUSALEM
(1) SETTLEMEN PTLICY ANDPRACTICE A:N OVERVIEW
(a) Phases ofsettlement activities
(b) Methods of appropriatinglandfor Zsraelisettlements (2) EFFECT OSF THE PRESENCE SETTLEMEN TSD SETTLER N THEOCCUPIEP DALESTINIAN
TERRITORY
(a) Economic andDevelopment Effects
(b) Conditionsfor Violence
FINANCIALINCENTIVES FORSETTLINGIN THOCCUPIEP DALESTINIA TERRITORY
(3)
(4) EXTENDIN TERRITORIAL JURISDICTION
~NTERNATIONALREACTION TO ISRAELI SETTLEMENTS POLICYAND PRACTICE
(5)
(6) ANNEXAT~ OND THE REGIME EASTJERUSALEM
(a) Legislation and dejure Annexation
(b) Status of PalestinianJerusalemites
(7) OTHER ILLEGAL MEASURER SELATED TOOCCUPIEE DASTJERUSALEM
(a) Moving the Border around East Jerusalem
(b) House Demolitions
(c) Dual TransportationNetworkr
(d) Settlement Construction
CHAPTER5. THE POLICIES AND PRACTICESOF ISRAEL,THE OCCUPYING
POWER,AND THE SECURITY SITUATIONIN THE OCCUPIED
PALESTINIANTERRITORY ..............................................
..............
(2) ISRAELPOLICIE SNDPRACTICES
PART C. THE WALL ..............................................
......101..........................
CHAPTER 6. THE WALL BEING BUILT BY ISRAELIN THE OCCUPIEDPALESTINIAN
TERRITORY,INCLUDINGIN AND AROUNDEAST JERUSALEM
(1) INTRODUCTION
THEROUTE OF THEWALL:EXISTING ,ECIDEDAND PROJECTEP DHASES
(2)
(a) Phase I of the Wall
(b) Phase II of the Wall
(c) Projected PhaseIII of the Wall
(d) East Jerusalem
(e) Summaly: The WallDepicted by Reference to the GreenLine
fl Correlationof the WallRoute to the GreenLine
THEREGIME OF THEWALL AND ACCOMPANYIN MGEASURE SND EFFECTS
(3)
(a) Physical Structure and Characteristics ofthe Wall
(b) WalledEnclaves
(c) ProperîyDemolition and Levelling of Land
(d) Establishment ofa Closed Zone anda Permit System (e) De FactoAnnexation and Conj?scationof Land
ir) Displacementand OtherDemographic Effects
(4) CORRELAT IOFNHEROUTE OFTHE WALL TO SETTLEMENTSROADS AND WATER RESOURCES
(a) Relationship toSettlementsand Roads
(b) Relationshipof the Wallto WaterResources
(5) THESOCIA LNDECONOME IFFECT OFTHE WALL
(a) SocialEffects of the Wall
(b) EconomicEffects of the Wall
(c) HeaIthEffects of the Wall
(d) EducationEffects of the Wall
(e) Effects of the Wallon the CulturalHeritage
PART D. LEGAL ANALYSIS .........................................................................
CHAPTER7. ISRAEL IS IN OCCUPATIONOF PALESTINIAN TERRITORY
(2) THE REGIMEOFOCCUPIEDTERRITORY
(a) In general
(b) Application of the regime of occupation toPalestine
THE REQUESTDOESNOTREQUIRE THE COURT TODETERMINETHEBOUNDARIESOF PALESTINE
(3)
(a) Thedivision of 'MandatedPalestine'
(b) Recognition of the Division of Mandated Palestine: Agreements between Israel and
Palestine
(c) Recognition of theDivision of MandatoryPalestine: ThePosition of the UnitedNations
International recognition that the Palestinian territory is occupied within the meaning of
(d)
theFourth GenevaConvention
CHAPTER 8. ISRAEL IS BOUNDBY INTERNATIONAL HUMANITARIANLAW AND
INTERNATIONALHUMANRIGHTS LAW IN RESPECTOF ITS
CONDUCTIN OCCUPIED PALESTINIAN TERRITORY ......................
(2) INTERNATION HAUMANITARIA LAW
(a) Basicprinciples of internationalhumanitarian law in theHague and GenevaConventions
(b) IsraelS obligation to comply with international humanitarian law in the Occupied
Palestinian TewitoryCHAPTER9 ISRAEL'SVIOLATIONS OF THE APPLICABLELAW THROUGH THE
CONSTRUCTIONAND MAINTENANCEOF THE REGIMEOF THE WALL
(1) THE PRINCIPLESOF INTERNATIONAL HUMANITARIAN LAW
(2) THERE IS NO LAWFUL BASIS FOR THE BUILDING OF THWALL
(a) The Walllacks anyjustification as a security measure
@) The Wall may not be diverted to protect Israeli settlements in the Occupied Palestinian
Territory, includingEastJerusalem,
(c) The Wallmay notbe diverted toprotect annexed territoryinEast Jerusalem
(d) There is nojustijkation for the construction of the Wallin the easternpart of the WestBank
(e) The Wallis an attemptto change the status of the OccupiedPalestinian Territory,ing
East Jerusalem
fl ConclusiononIsrael's right to construct the Wall
(3) THE EFFECTSOF THE WALL VIOLATE INTERNATIONALLAW AND RENDER IT A
DISPROPORTIONATEMEASURE
The Wallviolates the right tojî-eedom of movement
(a)
@) The Wallviolates the right to eam a livelihood
(c) The Wallviolatesfundamental rights to weijàre
(d) The Wall violates the right tofamily Ife
The Wallisa form of collectivepunishment
(e)
fi The Wallviolatesproperty rights of Palestinians
(g) The Wallviolates the right of the Palestinianpeople to self-determination
THEWALL IS NOT JUSTIFIED BY SELF-DEFENCE
(4)
(5) CONCLUDIN REMARKS
CHAPTER 10.VIOLATIONSOF THE RIGHT.OF THE PALESTINIAN PEOPLETO SELF-
DETERMINATION ..................................................
.....................
(1) THE RIGHT OF THEPALESTINIA PEOPLE TO SELF-DETERMINATION AS RECOGNIZED BY THE
INTERNATIONALCOMMUNITY AND THE UNITED NATIONS
(2) THE CONSTRUCTIONOF THE WALL GRAVELY INFRMGES THE RIGHT OF THE PALESTINIA NEOPLE
TO SELF-DETERMINATION
(a) The Wall severs the territorial sphere over which the Palestinian People are entitled to
exercise their right of self-determination and constitutes a violation of thenciple
prohibiting the acquisitionof territory by the use offorce
(b) The route of the Wall is designedto change the demographic compositionof the Occupied
Palestinian Territory, including East Jerusalem,by reinforcing the Israeli settlements and
byfacilitating their extensi-in disregard of thefact that these settlements are illegal
accordingto internationallaw
(c) By the creation of Palestinian enclaves, discrimination against and humiliation ofthe
Palestinian population, and the creation of unbeurable economic conditions, the Wall is
having the clear and foreseeable effect of leading to the forced displacement of the
Palestinian population into increasingly limitedareas regarded as safe and livable for
Palestinians. The Wall is part of a policy of reducing and parcelling out the territorial
sphere over which the Palestinian people are entitled to exercise their right of self-
determination, establishing non-contiguous Palestinianareas similar toBantustans.
(d) The Wall violates the right of the Palestinian people to permanent sovereignty over their
natural resources in the Occupied Palestinian Territory,including East Jerusalem, and
destroys the economicand social basisof the life of the Palestinianpeople
(e) The Wall endangers the feasibility of a viable State of Palestine and consequently
undermines thefuture of negotiations basedon the 'twoS'principleCHAPTER 11. LEGAL CONSEQUENCESOF ISRAEL'S BREACHES ..................2.9.....
(1) LEGAL CONSEQUENC FOSRISRAEL
Continuedduty toperform the obligation breached
(a)
(6) Cessationof the wrongjïulact
(c) Reparation
(3) LEGAL CONSEQUENCES FORSTATES OTHER THAN ISRAEL
CHAPTER 12. CONCLUSIONS ..................................................
....0...................
APPENDICES (The appendices follow the Written Statement and are separately paginated)
1. TABLES OF UN SECURITYCOUNCILRESOLUTIONS RESPECTING PALESTINE
2. CLOSED ZONE PERMIT SYSTEM
3. SUMMARYOF RECENTISRAELI ACTIVITY IN CONSTRUCTION OFTHE WALL
ANNEXES
VOLUME 1: MAPSAND PHOTOGRAPHS
Cross Section of the Wall Complex
Photographs Section
Map 1:The Wall in Occupied Palestinian Territory, Including East Jerusalem
Map 2: Historical Division of Palestine
Map 3:The Wall inthe West Bank
Map 4: The Wall in East Jerusalem
Map 5: The Wall and Closurein the West Bank
Map 6: Israeli Settlement Plansin Occupied Palestinian Territory, Including East
Jerusalem
9. Map 7: Israeli and Palestinian-ControlledAreas in the WestBank, March 2000
10. Map 8: The Walland Israeli Settlement Expansionin the West Bank
11. Map 9: The Wall and Israeli SettlerPopulationin the West Bank
12. Map 10:The Wall and Water Resourcesin the West Bank 13. Map 11:The Wall and West Bank Topography
14. Map 12a:The Wall in the West Bank - Section a: South of Qalqilya Area
15. Map 12b:The Wall in the West Bank - Section b: Qalqilya Area
16. Map 12c:The Wall in the West Bank - Section c: South of Tulkarm Area
17. Map 12d:The Wall in the West Bank - Section d: Tulkarm Area
18. Map 12e:The Wall in the West Bank - Section e: North of Tulkarm Area
19. Mrip 12f:The Wall in the West Bank - Section f:Qaffin Area
20. Map 12g:The Wall in the West Bank - Section g: Umm ar-Rihan Area
21. Map 12h:The Wall in the West Bank - Section h: Zububa Area
22. Map 12i:The Wall in the West Bank - Section i: East of Zububa Area
23. Map 12j:The Wall in the West Bank - Sectionj: Faqqu'a Area
24. Map 12k:The Wall in the West Bank - Section k: Jalbun Area
25. Map 13:The Wall and the Closed Zone
26. Briefing Map-Occupied Palestinian Temtory, Including East Jerusalem: The Wall in the
West Bank
VOLUME 2: DOCUMENTARY ANNEXES
1) Annex 1 Report of the Special Rapporteur of the Commission on Human Rights on the
situation of human rights in the Palestinian territories occupied by Israel since
1967,4 October 2001, Ai561440
2) Annex 2 Report of the Special Rapporteur of the Commission on Human Rights, Mr. John
Dugard, on the situation of human rights in the Palestinian territories occupied
by Israelsince 1967,6 March 2002, E/CN.4/2002/32
3) Annex 3 Report of the Special Rapporteur of the Commission on Human Rights on the
situation of human rights in the Palestinian territories occupied by Israel since
1967,29 August 2002, Al571366
4) Annex 4 Report of the Special Rapporteur of the Commission on Human Rights on the
situation of human rights in the Palestinian territories occupied by Israel since
1967,Addendum, 16September 2002, Al5713661Add1 .
5) Annex 5 Report of the Special Rapporteur of the Commission on Human Rights on the
situation of human rights in the Palestinian territories occupied by Israel since
1967,submitted in accordance with Commission resolutions 19312Aand 200218,
17December 2002, E/CN.4/2003/306) Annex 6 Report of the Special Rapporteur of the Commission on Human Rights on the
situation ofuman rights in the Palestinian territories occupied by Israelsince
1967, submitted in accordance with Commission resolution 193/2A, 8
September 2003,E/CN.4/2004/6
7) Annex 7 Human Rights Committee, Concluding Observations of the Human Rights
Committee: Israel, 18August 1998,CCPR/C/79/Add.93
8) Annex 8 Human Rights Committee, Concluding Observations of the Human Rights
Committee: Israel, 21 August 2003,CCPR/C0/78/ISR
Annex 9 Commission on Human Rights, Question of the Violation of Human Rights in
9)
the Occupied Arab Territories, including Palestine, Report of the High
Commissioner on her visit to the occupied Palestiniantemtories, Israel, Egypt
and Jordan (8-16 November 2000), E/CN.4/2001/114,29 November 2000
10) Annex 10 Commission on Human Rights, Question of the Violation of Human Rights in
the Occupied Arab Temtories, including Palestine, Report of thehuman rights
inquiry commission establishedpursuant to Commission resolution S-511of 19
October 2000,E/CN.4/2001/121, 16March 2001
11) Annex 11 International Committee of theRed Cross, Statement to the Conference of High
Contracting Parties to theourth Geneva Convention, Geneva, 5 December
2001, International Reviewof the Red Cross, vol. 84, No. 847, September 2002,
pp. 692-695
12) Annex 12 B'Tselem (The Israeli Information Centrefor Human Rights in the Occupied
Territones), Land Grab. Israel's Settlement Policyin the West Bank, May 2002
13) Annex 13 B'Tselem (The Israeli Information Centre forHurnan Rights in the Occupied
Territories), Behind the Barrier:an Rights Violations as a result of Israel's
Separation Barrier, April 2003,
www.btselem.org/Download/2003~Behind~The~Barrier~Eng.doc
14) Annex 14 Ms. Catherine Bertini, Persona1Humanitanan Envoy of the Secretary-General,
Mission Report, 11-19 August 2002http://domino.un.org/bertini_rpt.htm PART A. INTRODUCTIONAND COMPETENCE
Chapter 1. INTRODUCTION
1. This Written Statement is filed in accordance with the Order of the Court
dated 19 December 2003 in response to the United Nations General Assembly's
request for an advisory opinion on the legal consequences of the construction of a
Wall in the Occupied Palestinian Territory. This introductory chapter examines the
terms of the Request, discusses its scope and outlines the structure of this Written
Statement.
The Terms ofthe Request
(1)
2. The request was made by the United Nations General Assembly in
Resolution AIES-10114 of 8 December 2003. In that resolution, the General
Assembly decided,pursuant to Article 96, paragraph 1,of the UnitedNations Charter,
to request the InternationalCourt of Justice to give an urgent advisory opinion on the
followingquestion:
"What are the legal consequences arising fiom the construction of the
wall being built by Israel, the occupying Power, in the Occupied
Palestinian Territory, including in and around East Jerusalem, as
described in the report of the Secretary-General, considering the rules
and principles of international law, including the Fourth Geneva
Convention of 1949, and relevant Security Council and General
Assembly resolutions?"
3. The Request was transmitted to the Court by the United Nations Secretary-
Generalin a letter dated 8 December2003.'4. By an Order dated 19 December 2003, the Court fixed 30 January 2004 as
the time limit within which written statements relating to the question may be
submittedto the Court. Referring to both General Assembly Resolution A/ES-10114
and the report of the UN Secretary-Generaltransmitted to the Court with the request,
and noting "the fact that the General Assembly has granted Palestine a special status
of observer and that the latter is CO-sponsorof the draft resolution requesting the
advisory opinion", the Court decided that "Palestine may also submit to the Court a
written statementon the questionwithin" the time limit of 30 January 2004.
5. Palestine welcomesthe opportunityto take part in the written and oralphases
of this advisory proceeding and to furnish information on al1aspects raised by the
Request.
6. It is evidentthat Palestine is directlyconcernedwith the subject-matterof the
Request and has a special interest in the advisory opinion of the By deciding
to invite Palestine to participate in this advisory proceeding, the Court acknowledged
that Palestine has such a special interest. As the Court's Order of 19December 2003
recalls, Palestine was a CO-sponsorof Resolution A/ES-10114along with 26 Member
States of the United Nations. Palestine spoke in support of Resolution AIES-10114in
the General ~ssembl~.~ Palestine also spoke in support of Resolution AIES-10113 of
21 October 2003, which was CO-sponsored by the EuropeanUnion. Inthis resolution,
the General Assembly demanded"that Israel stop and reverse the constructionof the
1 SeeICJ Communiqué2003142(10 Dec. 2003).
2 In connection with the Court's advisoryjurisdiction, commentators have referred to"States
and other entities directly concerned." Shabtai Rosenne, The Law and Practice of the International
Court, 1920-1996, Vol. II (31ded., 1997),p. 993.wall in the Occupied Palestinian Territory, including in and around East Jerusalem,
which is in departure of the Armistice Line of 1949 and is in contradiction to the
relevantprovisions of international la^."^
7. The preamble to Resolution AIES-10114 refers to "the confiscation and
destruction of Palestinian land and resources, the disruption of the lives of thousands
of protected civilians and the de facto annexation of large areas of territory" in
connection with Israel's construction of the Wall in Occupied Palestinian Territory.
The resolution also points to "the even more devastating impact of the projected parts
of the wall on the Palestinian civilian population and on the prospects for solving the
Palestinian-Israeliconflictand establishingpeace in the region."
Scope of the Present Request
(2)
8. The terms of the Request establish the scope of the advisory opinion
requested from the Court. It is important at the outset to be clear what this case is
about and what it is not about.
9. The Court is asked to advise the General Assembly on the legal
consequences arising £romthe construction of the Wall in the Occupied Palestinian
Territory,including in and aroundEast Jerusalem. The existingand proposed route of
the Wall, and its associatedregime of restrictions, will be described in more detail in
3
See General Assembly Press Release GAI10216 of 8 December 2003, text from
~www.un.org/News/Press/docs/2 16.3/cht1>.2
4 See General Assembly Press Release GAI10177 of 20 October 2003, text from
~www.un.org/News/Press/docs/2 10703/c.t1>.Chapter 6. The route of the Wall is shown on the fold-out map which is attached to
this Written Statement.
1O. The Court is not asked to determine the territorial boundaries of the
Occupied Palestinian Territory. It is not necessary for the Court to determine the
precise boundaries of the Occupied PalestinianTerritory, including East Jerusalem, in
order to answer the question posed by the General Assembly. It is sufficient on any
view that a significant length of the Wall runs through OccupiedPalestinianTerritory,
and that it hasmajor impacts on that territory,both currently and for the future.
11. Two basic issues are implicit in the question presented to the Court for its
Opinion. The fir isstte notion of Occupied PalestinianTerritory, the territory of the
Palestinian people, a people entitled to self-determinationr international law, as
has been repeatedly reaffirmed by the General Assembly and the Security Council.
The second is that the Wall itself and its legal consequencesinvolve not only its
constructionbut also its operation. For the Wall is not just a fence; it is a regime, a
regime of isolation, discriminationand the denial of rights which does not tally with
its ostensiblemotive, security. Except for short distances, the Wall has not been and
will notbe built along the Green Line,the well-knownline separatingIsrael from the
Occupied Palestinian Territory. Nor is it operated in any way which would be
consistent with its avowed motive of securing Israel from attacks. Rather it is an
attempt unilaterally to change the status of the Occupied Palestinian Territory
including thede facto annexation of large areas, and a precursor of an imposed
unilateral settlement by Israel in lieu of a settlement endorsed by the international
cornrnunity-an attemptto imposea "solution" in defiance of internationallaw.12. In this Written StatementPalestine will focus on the legal issuespresented by
the existingand proposed construction and operation of the Wall. To give an opinion
on these legal issues requires some background to Palestine and its legal status, and
this is provided in Chapter 3. But it does not require the Court to resolve al1issues
that historicallyhave divided,and that presently divide, Palestine fi-omIsrael. For the
point is that the Wall is a new, and most serious, cause of further division-of
division to the point of entire exclusion-of permanent separation not of Palestine
fi-omIsrael but of one major part of the Occupied Palestinian Territory fi-omthe
residue of that territory.
13. Thus, in this Written Statement, Palestine focuses on the specific question
asked-on the Wall, its effects and its legality. Palestine reserves its position in
respect of al1 questions and issues other than those specifically addressed in this
Written Statement.
(3) Terminology
14. The following phrases and terms are frequently used in this Written
Statement.and are definedas follows:
AdditionalProtocols: Protocol 1 Additional to the Geneva Conventions and
relating to the Protection of Victims of International
Armed Conflicts, and Protocol II Additional to the
Geneva Conventions and relating to the Protection of
Victims of Non-International Armed Conflicts adopted
8 June 1977, entry into force 7 December 1978, text
published in 1125 U.N.T.S. 3 (1979). Protocol 1 is
included as Dossier no. 61 accompanying the UN
Secretary-General'ssubmission.AdditionalProtocol1: Protocol 1 Additional to the Geneva Conventions and
relating to the Protection of Victims of International
Armed Conflicts, adopted 8 June 1977, entry into force
7 December 1978.Protocol 1is included as Dossier no.
61 accompanying the UN Secretary-General's
submission.
BertiniReport: Mission Report by Ms. Catherine Bertini, Persona1
Humanitarian Envoy of the Secretary-General, of
19August 2002 included as Annex 14 in Annex
Volume 2 accompanyingthis Written Statement.
B'Tselem2002 Report: the May 2002 report of B'Tselem (the Israeli
Information Center for Human Rights in the Occupied
Territories) entitled "Land Grab: IsraSl Settlement
Policy in the West Bank" included as Annex 12 in
Annex Volume 2 accompanyingthis Written Statement.
B'Tselem2003 Report: the April 2003 report of B'Tselem entitled"Behind the
Barrier: Human Rights Violationsas a result ofIsrael's
Separation Barrier" included as Annex 13 in Annex
Volume 2accompanyingthis Written Statement.
ClosedZone: the zone, sometimes also referred to as "buffer zone,"
"seam zone" or "security zone," constituted by the area
betweenthe Green Line and the Wall.
DeclarationofPrinciples: the Declaration of Principles on Interim Self-
Government Arrangements concluded between Israel
and the Palestine Liberation Organisation in
Washington, D.C. on 13 September 1993 as part of the
Oslo Peace Process, text published in Palestine Year
Book of International Law, vol. 7 (1992-1994), p. 230;
included as Dossier no. 65 accompanying the UN
Secretary-General'ssubmission.
DugardReport (2003): the Report of the SpecialRapporteurof the Commission
on Human Rights, John Dugard, on the situation of
human rights in the Palestinian territories occupied by
Israel since 1967, submitted in accordance with
Commission Resolution 199312 A, UN Doc.
ElCN.41200416(8 September2003); included as Annex
6 in Annex Volume 2 accompanying this Written
Statement.
Fourth Geneva Convention: Geneva Convention IV Relative to the Protection of
Civilian Personsin Time of War, done at Geneva on 12
August 1949, 75 U.N.T.S. 287 (1950); included as
Dossier no. 60 accompanying the UN Secretary-
General'ssubmission.GenevaConventions: collectively, the Geneva Convention 1 for the
Ameliorationof the Conditionof the Wounded and Sick
in Armed Forces in the Field, the Geneva ConventionII
for the Amelioration of the Conditionof Wounded, Sick
and ShipwreckedMembers of Anned Forces at Sea,the
Geneva Convention III relative to the Treatment of
Prisoners of War, and the Geneva Convention IV
relative to the Protection of Civilian Persons of War,
adopted 12August 1949,75 U.N.T.S. (1950).
GreenLine: for purposes only of this Written Statement, the line
defined in the Armistice Agreement concluded in 1949
between Israel and Jordan.
ICCPR: the International Covenant on Civil and Political Rights,
999 U.N.T.S. 172 (1983); included as Dossier no. 62
accompanyingthe UN Secretary-General's submission.
ICESCR: the International Covenant on Economic, Social and
Cultural Rights, 993 U.N.T.S. 3 (1983); included as
Dossier no. 63 accompanying the UN Secretary-
General's submission.
ICRC: the Internationalommitteeof the Red Cross.
IDF: Israel DefenseForces.
ILC: the International Law Commission of the United
Nations.
ILC Articles: the Articles on Responsibility of States for
Internationally Wrongful Acts adopted by the ILC on 9
August 2001.
Hague Regulations: the Annex to the 1907 Hague Convention IV
Respecting the Laws and Customs of War on Land, 18
October 1907, 36 Stat. 2277, T.S. No. 539; included as
Dossier no. 57 accompanying the UN Secretary-
General's submission.
OccupiedPalestinianTerritoryor OPT:the Palestinianterritory of the West Bank,
including East Jerusalem, and the Gaza Strip occupied
by Israel since 1967, as further explained in Chapter 7
of this Written Statement. This tenn is sometimes
referred to in this Written Statement as the "Occupied
PalestinianTerritory,includingEast Jerusalem".Oslo Accords: the agreements and protocols concluded between Israel
and the Palestine Liberation Organisation as part of the
Oslo Peace Process between 1993 and 1999 and
detailed in Chapter 3 of this Written Statement.
OsloPeaceProcess: the 1990s Israeli-Palestinian peace process leading to
the Oslo Accords.
Quartet: the collective of the United States, the Russian
Federation, the European Union and the United Nations
responsible for current peace initiatives, including the
Road Map.
RoadMap: the Performance Based Roadmap to a Permanent Two-
State Solution to the Israeli-Palestinian ConfUNct,
Doc. SI20031259 (2003), endorsed by the United
Nations SecurityCouncilin its Resolution 1515adopted
on 19 November 2003, UN Doc. SIRES11515(2003);
included as Dossier no. 70 accompanying the UN
Secretary-General's submission.
Wall: the integrated system of concrete walls, fences
(including electric fences), barriers, barbed wire zones,
ditches, trenches, trace paths, patrol roads, and fortified
guard towers being built by Israel in the Occupied
Palestinian Territory, as shown on the maps listed in
Annex Volume 1accompanyingthis Written Statement,
including the regime (regulations, measures, policies,
actions and practices) pertaining thereto and further
describedin Chapter 6 of this Written Statement.
UNRWA: the United Nations Relief and Works Agency for
PalestineRefugees in the Near East created by United
Nations General Assembly Resolution 302 (IV) of 8
December 1949.
UNSCOP: the United Nations Special Committee on Palestine
establishedby the United Nations General Assembly on
15May 1947.
Ziegler Report: the report of the SpecialRapporteur of the Commission
on Human Rights, Jean Ziegler, on the right to food in
the Occupied Palestinian Territories occupied by Israel
since 1967,UN Doc. E1CN.4120041101Add.2 of 31
October 2003; included as Dossier no. 56
accompanyingthe UN Secretary-General's submission. Structureof this Written Statement
(4)
15. This Written Statement is divided into four Parts. Chapter 2, which
completes this Part A, argues that the Request is admissible and that, in accordance
with its constantjurisprudence, the Court shouldrespond to it.
16. Part B addresses the Factual Backgroundto the Request. It consists of three
Chapters. Chapter 3 outlines a chronology of the main developments concerning
Palestine, so far as they are relevant to the Request. Chapter 4 explains how Israel's
history of attempts unilaterally to change the legalatus of the Occupied Palestinian
Territorythreatensto culminate in the Wall and its consequences. Chapter5 discusses
Israel's practicesas OccupyingPower, explaining the current security situation as this
relates to and is exacerbatedby the Wall.Part C (Chapter 6) examines the route and
regime of the Wall.
17. Part D examines the legal considerationsraised by the Request. The first two
Chapters (Chapters 7 and 8) are concerned with the applicable law. Chapter 7
establishes that Israel is in occupation of Palestinian Territory, which is affected by
the regime of the Wall. Chapter 8 outlines the applicable international law in the
Occupied Palestinian Territory. Chapter 9 outlines the principal violations of the
applicable law by Israel through the construction and maintenance of the regime of
the Wall. Chapter 10examinesthe consequencesof these violations in terms of denial
of self-determinationto the people of Palestine. The legal consequences for Israel and
the international community are examinedin Chapter 11.18. The Written Statement ends with a summary of conclusions.Attached to the
Written Statementare three appendices.
19. Annexed to this Written Statement is a volume of maps and graphics
(Volume l), and 14 documentary annexes, mostly consisting of published reports on
the Wall fiom third parties, which are reproduced for the convenience of the Court
(Volume2). Chapter2. THE COURT IS COMPETENT TO GIVE THE ADVISORY
OPINION REQUESTED, AND THERE ARE NO COMPELLING REASONS
PREVENTINGTHE COURT FROM GIVING ITS OPINION
(1) The Courtis competentto give the requested advisoryopinion
20. Article 96,paragraph 1,of the United Nations Charterprovides:
"The General Assembly or the Security Council may request the
International Court of Justice to give an advisory opinion on any legal
question."
21. Article 65,paragraph 1,of the Court's Statutestipulates:
"The Court may give an advisory opinion on any legal question at the
request of whatever body may be authorized by or in accordance with
the Charterof the UnitedNations to make such a request."
22. These two provisions suffice to establish the competence of the
General Assembly to request an advisory opinion fiom the Court and the
competenceof the Courtto give the requested opinion.5
(a) Jurisdictionratione personae: the request was made bv a duly
authorizedornan
23. As the Court explained in its reply to the General Assembly's most recent
request for an advisoryopinion:
"For the Court to be competent to give an advisory opinion, it is thus
necessary at the outset for the body requesting the opinion to be
'authorizedby or in accordancewith the Charterof the United Nations
to make such a request. The Charter provides in Article 96, paragraph
1, that: 'The General Assembly or the Security Council may request
the International Court of Justice to give an advisory opinion on any
legal question."76
5 As the Court reiterated in its most recent Opinion, "the advisory nature of the Court's
function...is govemed by the terms of the Charter and of the Statute." Difference relating to
Immunityfrom Legal Process of a Special Rapporteur of the Commissionon Human Rights, Advisory
6pinion,I.C.J.Reports 1999,p. 62, para.26.
Legalig ofthe Threator UseofNuclear Weapons,Advisory Opinion,I.C.J. Reports 1996,p.
226, at 232, pa11.24. Referring to Articles 10-13 of the Charter, the Court concluded that "in the
present case,the GeneralAssemblyhas competencein any eventto seisethe court."'
25. In makingthe request the General Assembly is also acting in the spirit of the
recommendation set forth in its Resolution 171A (II) of 14 November 1947 on the
"Need for greater useby the United Nations and its organs of the International Court
of ~ustice,"'and in the context of the cal1by former UN Secretary-GeneralBoutros-
Ghali in his "Agenda for Peace" that "United Nations organs turn to the Court more
frequently for advisory opinions."9 Consecutive Presidents of the Court have made
appeals before the General Assembly for greater recourse to the advisory function of
the court."
The Resolutionwas validlv adoptedfromthe proceduralpoint of view
(b)
26. The Court's jurisprudence affirms the presumptionof validity of a resolution
of a properly constituted organ of the United Nations. In reply to South Afi-ica's
argument that the resolution of the Security Council which requested an advisory
opinionof the Courtin the NamibiaCase was invalid,the Court stated:
"A resolution of a properly constituted organ of the United Nations
which is passed in accordancewith that organ7s rules of procedure, and
is declared by its President to have been so passed, must be presumed
to have beenvalidly adopted."l l
7
8 Ibid. at 233, para. 11.
AIRESI171A(II), United Nations, Repertory of the UnitedNationsOrgans, vol. V, Articles
92-111 of the Charter. See also the Assembly's fresh appeal contained in resolution 3232 (XXIX),
"Review of the role of the International Court of Justice."
9 Boutros Boutros-Ghali,Agendafor Peace, 1992,p. 22.
IO See, e.g.,I.C.J. Yearbook 1991-1992,p. 205, at 210-211;I.C.J. Yearbook 1992-1993,p. 249,
at 252; I.C.J. Yearbook 1994-1995,p. 207, at 213; I.C.J. Yearbook 1995-1996, p. 270, at 281; I.C.J.
Yearbook1997-1998, p. 288, at 292.
II
Legal Consequencesfor States of the ContinuedPresenceofSouth Africa in Namibia (South
WestAfrica) notwithstandingSecurity CouncilResolution 276(1970),Advisory Opinion,I.C.J.Reports27. Resolution AJES-10114of 8 December 2003 was adoptedby a recorded vote
of 90 in favour to eight against. The resolution was properly adopted by the
constitutionallyrequired majority of the members of the United Nations which voted
on the matter. It must be considered as the expression of the legally valid will of the
GeneralAssembly.
28. The number of abstentions and absences from the vote has no effect on the
validity and procedural regularity of the resolution adopting the request. Rule 86 of
the Assembly'sRules of ~rocedure'~defines the terms "members present and voting,"
which appear in paragraphs 2 and 3 of Article 18 of the United Nations Charter to
mean members casting an affirmative or negative vote and so as to exclude those that
abstain or are absent Tom the vote. A long practice of the General Assembly has
supportedand appliedthis Rule.
29. In any event, as the Court stated in the Opinion it gave in 1996 concerning
the Legality of the Threat orUseofNuclear Weapons:
"Once the Assembly has asked, by adopting a resolution, for an
advisory opinion on a legal question,the Court ...will not have regard
...to the distributionof votes in respect of the adoptedres~lution."'~
1971, p. 16, at 22, para. 20; see also Legality of the Use by a State of Nuclear Weaponsin Armed
Conjlict,Advisory Opinion,I.C.J. Reports1996,p. 66, at 82, para. 29.
12 SeeUN Doc.Al5201Rev.15.
13 Legality of the Threat or UseofNuclear Weapons,Advisory Opinion,I.C.J. Reports 1996,p.
226, at 237, para. 16. The fact that the resolution embodying the requestin that instance had been
"adopted with substantial numbers of negative votes andabstentions (Le., 78 votes in favour, to43
against, with 38 abstentions) obviously did not prevent theCourt from renderingvisory opinion.
Ibid. at 255, para. 7 (c) TheResolutionadoptingthe request was intra viretshe Assembly
30. Pursuant to Article 96, paragraph 1, of the United Nations Charter, the
General Assembly "may request" an advisory opinion from the Court. Having
decided to make the request, the presumption must be that the General Assembly has
validly exercisedits power in this particular case. To place a restrictive interpretation
on the power of the General Assembly to initiate advisory proceedings on a legal
questionwould run contraryto the clear intentionof Article 96 of the Charter.
31. Unlike "[olther organs of the United Nations and specialized agencies,"
whose power to request advisory opinions is restricted to legal questions "arising
within the scope of their activities," the Assembly's power is not so restricted under
Article 96 of the Charter. The Court has affirmedthe Assembly's broad authorization
under the charter.14
32. The powers of the General Assembly are broadly stated in Chapter IV of the
United Nations Charterand include the powerto "discuss anyquestions or any matter
within the scope of the present Charter ... ."(Article 10). The question falls squarely
within the ambit of the Assembly's extensive mandate under the Charter, which
embraces a broad scope of activities. This mandate includes questions of human
rights, self-determination anddecolonization. In addition, Article 11 of the Charter
authorizes the GeneralAssembly to (a) consider generalprinciples of CO-operationin
the maintenanceof internationalpeace and security(Article 11,paragraph l), and (b)
discuss any questionsrelating to the maintenance of international peace and security
14 See ibid., at 233, para. Il. That the drafters of the Charter intended toprovide the General
Assembly with aeneral access to the advisory system was underscored by a former President ofthebrought before it by any member of the United Nations or, in certain circumstances,a
Statewhich is not a member of the UnitedNations (Article 11,paragraph 2).
33. Thus, issues pertaining to the situation of human rights, self-determination,
the use of force et al. in the Palestinian territory occupied by Israel since 1967,
including the legal consequences of the construction and operation of the Wall in the
Occupied Palestinian Territory, fa11squarely within the General Assembly's express
powers and activitiesas providedby its constituentinstrument.
34. As the practice of the General Assembly confirms, the subject-matter of the
request is one the Assembly has regularly addressed in the course of its activities. Its
long-standing interest and engagement in Palestine and in the right to self-
determination,and the maintenanceof other human rights, of the Palestinianpeople is
well-known. It has been manifested in the annual debates of several of the
Assembly's main committees relating inter alia to self-determination and
decolonization in general and the question of Palestine in particular; in the regular
meetings of the Assembly's Committee on the Exercise of the Inalienable Rightsof
the Palestinian People since 1975; in plenary debates concerning the question of
Palestine, and the many Assemblyresolutions on that question; in the holding of the
tenth emergency specialsession on "Illegal Israeli actions in OccupiedEast Jerusalem
and the rest of the Occupied PalestinianTerritory," (dating back to 1997,when Israel
began construction of a new settlement south of East ~erusalem);'~and also in the
Court in a statement before the Sixth Committee of the General Assembly in 1994.See I.C.J.
Yearbook1994-1995, p. 215,at 219.
15
Thus, resolution AIES-10113of 21 October 2003, adoptedby a vote of 144in favour to four
against, demanded "that Israel stop and reverse the construction of the Wallin the Occupied Palestinian
Territory, including in andaround East Jerusalem,which is in departure of the Armistice Lineof 1949commissioningof numerousstudies on the situation of human rights in the Palestinian
territories occupied by Israel since 1967, including the section regarding the wa11.16
Thus, the practice of the GeneralAssembly confirms both its competencein this case
and its present active involvementin the issue. The Assembly clearly has an interest
in knowing the legal effects of Israel's occupation of the Palestinian territories
occupied since 1967, and more particularly in the legal consequences of the
construction of the Wall being built by Israel in the Occupied Palestinian Territory,
includingin and aroundEastJerusalem.17
35. The question submittedrelates to a matter of direct concern to the United
Nations. Violationsof the United Nations Charter are of such concern. The report of
8 September2003 of the SpecialRapporteur of the Commissionon Human Rights on
the situation in the Palestinian territories occupied by Israel since 1967, which is
referenced in Resolution MES-10114, characterized the construction of the Wall as
"conquest in international law, ... prohibited by the Charter of the United
Nations ...."18 The United Nations at large has an interest in assuring strict
compliance by its Member States with the purposes and provisions of the Charter,
includingwith respect to the resolutions adoptedunder the Charterby its main bodies.
Israel has a long record of non-compliance with the pertinent resolutions of the
and is in contradiction to relevant provisions of international law." The resolution embodying the
16quest for an advisory opinion was adopted as part of the Assembly's tenth emergency special session.
See. e.g., the report of the UN Secretary-General of 28 November 2003, UN Doc. AIES-
101248. The Secretary-General's reportwas submitted pursuant to paragraph 3 of General Assembly
resolution AIES-10113. Cf. Legality of the Threat or Use of Nuclear Weapons,Advisory Opinion,
I.C.J. Reports 1996, p. 226, at 233, para. 12. Other recent examples are the reports of the Special
Committee to Investigate Israeli Practices Affecting the Human Rights of the Palestinian People and
Other Arabs of the Occupied Territories (UN Doc. Al581311) and of the Special Political and
Decolonization Committee (Fourth Committee) (UN Doc. Al581473and Corr.1)referenced in General
Assembly resolutionA/RES/58/99 of 9 December 2003 and resolution A/RES/58/97 of 9 December
2003.Security Council and the General Assembly, including most recently Resolution
AIES-10113of 21 October 2003, as confirmedby the Secretary-Generalof the United
Nations inhis report dated 28November 2003. This led to the Assembly'srequest for
an advisoryopinion embodiedin ResolutionAIES-1011 4.
(d) Jurisdictionratione materiae:the Court is askedto give an opinion on
a legal question
36. Both Article 96, paragraph 1, of the United Nations Charter and Article 65,
paragraph 1, of the Court's Statute require that the question forming the subject-
matter of the request should be a "legal question." As explained below, the advisory
opinion requested in the present case relates to a "legal question" within the meaning
of those provisions.
37. It shouldbe recalledthat it is for the requesting organ-and not for a Member
State- to formulatethe terms of a questionthat it wishes to ask.19The objective of the
question is clear: to determine the legal consequencesof the construction of the Wall
being built by Israel in the Occupied Palestinian Territory in light of the applicable
internationallegal fiame~ork.~~
17 Cf. Resewations to the Convention on the Prevention and Punishment of the Crime of
Genocide,Advisory Opinion,I.C.J. Reports1951,p. 19.
18
19 SeeDugard Report (2003), at 2,8, para. 14.
See Difference relating to Immunity from Legal Process of a Special Rapporteur of the
Commissionon Human Rights, Advisory Opinion,I.C.J. Reports 1999,p. 62, para. 36.
20 Cf. Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion,I.C.J. Reports
1996,p. 226, at 238, para. 20. 38. The question put bythe General Assembly in this case is similar to the one
which led the Court to give the Opinion in 1971 concerning the Legal Consequences
for States of the ContinuedPresence of South AJi-icain Namibia (South WestAfiica)
notwithstandingSecurity CouncilResolution 276 (1970) .21
39. As the Court stated in the Opinion it gave in 1975 in Western Sahara,
questions:
"framed in terms of law and rais[ing] problems of internationallaw ...
are by their very nature susceptible of a reply based on law ...[and]
appear ...to be questionsof a legal ~haracter."~~
40. The Court can give a legal answer to the question posed in this case. The
advisory opinion requested by the General Assembly relates to "the legal
consequences" of the construction of the Wall in the Occupied Palestinian Territory
"considering the rules and principles of international law, including the Fourth
Geneva Convention of 1949, and relevant Securily Council and General Assembly
resolutions." This languagemakes it clear that the Request concernsthe international
legal aspects of the construction of the Wall, and only such aspects. To rule on the
legal consequences of the construction of the Wall in the Occupied Palestinian
Territory, the Court must identiQ the existing "rules and principles of international
law," interpret them and apply them to the construction and operation of the Wall,
thus offering a reply to the question posed basedon international la^.^^
21 Legal Consequencesfor States of the Continued Presence of South Africa in Namibia (South
WestAfrica) notwithstanding Security CouncilResolution 276(1970),Advisory Opinion,I.C.J. Reports
1971, p. 16, at 17, par1.("What are the legal consequences for States of the continued presence of
22uth Africa inNamibia, notwithstanding Security Council resolution 276 (1970)?").
WesternSahara,Advisory Opinion,1.C.J. Reports 1975,p. 18,para. 15. See also Legality of
23e Threator Useof Nuclear Weapons,Advisory Opinion,I.C.J. Reports 1996,. 226, at 234, para. 13.
Cf. Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion,I.C.J. Reports
1996,p. 226, at 234, para. 13. The question of the applicability of a treaty, of which the Fourth Geneva41. The question posed in this case is not an abstract question, but is directly
related to a specific instance, or concrete situation, namely, Israel's construction and
operation of the Wall in the Occupied Palestinian Territory, including in and around
East ~erusalem.~~The Request arose from circumstances of practical necessity and
urgency. (Indeed, since the Request was made there seems to have been a fùrther
increase in the rate of construction of the Wall.) The question posed does not require
the Courtto make speculativestatements.
Convention referred to in the request constitutes an example, to a given situation has been dealt with by
the Court under its advisory junsdiction. See, e.g., Interpretation of Peace Treaties withBulgaria,
Hungary and Rumania, First Phase, Advisory Opinion,I.C.J. Reports 1950, p. 71; Applicability of the
Obligation to Arbitrate under Section 21 of the United Nations Headquarters Agreement of26 June
1947, Advisory Opinion,I.C.J. Reports 1988,p. 12, at 26, para. 33; Applicability of Article VI,Section
22, of the Conventionon the Privileges andImmunities of the UnitedNations, Advisory Opinion,I.C.J.
Reports 1989, p. 177,at 187,para. 28 ("The question which is the subject of the request, involving as it
does the interpretation of an international convention in order to determine its applicability, is a legal
question.");Difference relating to Immunity from Legal Process of a Special Rapporteur of the
Commission on Human Rights, Advisory Opinion, I.C.J. Reports 1999, p. 62, at 187, para. 26.
Moreover, the Court has consistently affirmed that the interpretation of treaty provisions constitutes "an
essentially judicial task" (Certain Expenses of the United Nations, Advisory Opinion,I.C.J. Reports
1962, p. 155; Conditions ofAdmission of a State to Membership in the United Nations (Article 4of the
Charter), Advisory Opinion,I.C.J. Reports 1947-1948,p. 61 ("[tlo determine the meaning of a treaty
provision ...is a problem of interpretation and consequently a legal question"); Competence of the
GeneralAssemblyfor the Admission of a State to the UnitedNations, Advisory Opinion,I.C.J. Reports
1950, pp. 6-7; Interpretation of the Agreement of 25 March 1951 between the WHO and Egypt,
Advisory Opinion,I.C.J. Reports 1980,p. 87, para. 33. In its most recent Opinion, the Court concluded
that the condition of a legal question was satisfied based on the fact that the opinion requested related
to the interpretation of a treaty that was mentioned in the request. Seeference relating to Immunity
from Legal Process of a Special Rapporteur of the Commissionon Human Rights, Advisory Opinion,
I.C.J. Reports 1999,p. 62, para. 26. The terms of the request in that case did not specifically invite the
Court to engage in an interpretation of the treaty referred to in the request. While the request in this
case specifically mentions the Fourth Geneva Convention, the wording of the request ("considering the
rules and principles of international law, including") indicates that its scope is not limited to that or any
other treaty.
24 Regarding the nature of the legal question, the Court has declared: "According to Articl96
of the Charter and Article 65 of the Statute, the Court may give an opinion on any legal question,
abstract or otherwise." Conditions of Admission of a State to Membership in the United Nations
(Article 4 of the Charter), Advisory Opinion, 1948, I.C.J. Reports 1947-1948, p. 57, at 61. See also
Effect of Awards of Compensation made by the United Nations Administrative Tribunal, Advisory
Opinion, I.C.J. Reports 1954,p. 47, 51; Legal Consequencesfor States ofthe Continued Presence of
South Africa in Namibia (South WestAfrica) notwithstanding Security CouncilResolution 276 (1970),
Advisory Opinion,1.C.J.Reports 1971, p. 16, at 27, para. 40; Legality of the Threat or Use of Nuclear
Weapons,Advisory Opinion,I.C.J. Reports 1996,p. 226, at 236, para. 14.42. Most, at least, of the significant facts in this case are uncontroversial. The
establishment of certain facts in this case is clearly within the scope of the Court's
judicial functionand cannottransformthe question into a non-legalone."
43. The facts upon which the Court can rely in responding to the Request are
well-documented. They are before the Court in the documents accompanying the
Request, in particular the report of the Secretary-Generalreferenced in the resolution
embodying the ~e~uest,'~and the report of the Special Rapporteur of the United
Nations Commission of Human Rights on the situation of human rights in the
Palestinianterritories occupiedby Israel since 1967.'~The Secretary-General's report
informed the United Nations membership in clear and unambiguous terms that
construction of the Wall was ongoing. It also described the construction and other
activity in relation to the route of the Wall and its humanitarian and socio-economic
impact on the Palestinian people. It is undisputed, and is amply supported by those
reports and by the documents annexed to this Written Statement, that Israel is
25 As the Court has explained on a previous occasion: "The Govemment of South Africa has
also expressed doubts as to whether the Court is competent to, or should, give an opinion, if, in order to
do so, it should have to make findings as to extensive factual issues. In the view of the Court, the
contingency that there may be factual issues underlying the question posed does not alter its character
as a 'legal question' as envisagedin Article 96 of the Charter. The reference in this provision to legal
questions cannot be interpreted as opposing legal to factual issues. Normally, toable a court to
pronounce on legal questions, it must also be acquainted with, take into account and, if necessary, make
findings as to the relevant factual issues. The limitation of the powers of the Court contended for by
the Govemment of South Africa has no basis in the Charter or the Statute." Legal Consequencesfor
States of the Continued Presence of SouthAfiica in Namibia (South West Africa) notwithstanding
Security CouncilResolution 276 (1970),Advisory Opinion,I.C.J. Reports 1971, p. 16, at 27, para. 40.
Moreover, "a mixed question of law and fact is none the less a legal question within the meaning of
Article 96, paragraph 1, of the Charter and Article 65, paragraph 1, of the Statute." WesternSahara,
Advisory Opinion,1.C.J.Reports 1975,p. 12,at 19,para. 17.
26 See UN Doc. AIES-101248. The Secretary-General's report was based in large part on
information from United Nations offices on the ground in the Occupied Palestinian Territory (including
field monitoring), World Bank reports, a World Food Programme Survey, Israeli Ministry of Defense
documents (including an officia1map of the route of the Wall, Israeli Cabinet Decisions, and military
Orders), and other materials available to the United Nations, includingin the public domain. See
id.at paras. 2-3, 6, 9, 23 and 25. The Secretary-General's report also notes that Israel and Palestine
were consulted in the preparation of the report and includes a summary of their legal positions in
Annex 1and II. See id. at para. 2.constructingand maintaining a Wall in the Occupied Palestinian Territory, and what
the existingandprojected course, location and impact of the Wall is.
44. The Assembly's request seeks the Court'sadvice on the legal consequences
of the constructionof the Wall in the Occupied Palestinian Territory "as described in
the report of the Secretary-General." Despite the different context, the views
expressed by the Court in its most recent Opinion are apposite for purposes of the
present case. In that instance, the request fiom the requesting body included the
words "taking into account the circumstances set out in paragraphs 1to 15of the note
of the Secretary-General ... ." The Court reached the following conclusion based on
these words:
"It is clearthat the reference in the request to the note of the Secretary-
General was made in order to provide the Court with the basic facts to
which to refer in making its deci~ion."~~
45. Similarly, the Report of the Secretary-Generalwas included in the request
embodiedin Resolution AIES-10/14in order to provide the Court with the basic facts
to which to refer in making its decision in the present case. The Court can render its
advisory opinion based on these basic facts, and as necessary on other facts of public
record.
27
See Dugard Report (2003).
28 Difference relating to Immunity from Legal Process of a Special Rapporteur of the
Commissionon Human Rights, Advisory Opinion,I.C.J. Reports 1999, p. 62, para. 39. Similarly, the
Court's predecessor once decided that"it must accept theings of the Committee [appointed by the
League of Nations to investigate theer to which the request for advisory opinion related] onissues
of fact unless inthe records submitted to the Court there is evidenceto refute them." Jurisdiction of the
European Commissionon the Danube, Advisory Opinion, 1927,P.C.I.J.,Series B, No. 14,p. 46.(2) There areno compellingreasons preventingthe Court from givingthe
requestedadvisoryopinion
46. Notwithstanding the permissive language of Article 65, paragraph 1, of the
Court's Statute, and the affirmation by the Court, since the Eastern Carelia Case in
1923 (which shall be discussed at length later), that the exercise of its consultative
function is "discretionary," the present Court has never declined to give a requested
advisory opinion through an exercise of discretion. Indeed, no admissiblerequest for
an advisoryopinionfi-omany organ haseverbeen refused.
47. Alreadyin 1950, this Court declared:
"The reply of the Court, itself an 'organ of the United Nations',
represents its participation in the activities of the Organization,and, in
principle, shouldnot be refu~ed."~~
48. Still more emphatically, in 1956, the Court said that only "compelling
reasons" would lead it to refuse giving a requested opinion. 30 On a more recent
occasion, the Court sumrnarized its practice in the granting of advisory opinions as
follows:
"The Court has constantly been mindful of its responsibilities as 'the
principal judicial organ of the United Nations' (Charter, Art. 92).
When considering each request, it is mindful that it should not, in
principle, refuse to give an advisory opinion. In accordance with the
jurisprudence of the Court, only 'compelling reasons' could lead it to
such a refusa1 ...There has been norefusal,based on the discretionary
power of the Court, to act u on a request for advisory opinion in the
history of the present Court."T'
29
Interpretation of Peace Treaties with Bulgaria, Hungary and Rumania, First Phase,
30visory Opinion, I.C.J. Reports1950,65, at 71.
Judgments of the Administrative Tribunal of the IL0 upon Complaints Made against
31NESCO,Advisory Opinion, I.C.J. Reports1956,p. 86.
Legality of the Threator Useof Nuclear Weapons,Advisory Opinion, I.C.J. Reports1996,p.
226,235, para. 14(includingreferences to earlierjurisprudence). (a) The questionput to the Court is both urgent and relevant, and islikely
to have a practical and contemporaryeffect
49. The Court has declaredthat:
"[tlhe hction of the Court is to give an opinion based on law, once it
has come to the conclusion that the questions put to it are relevant and
have a practical and contemporary effect, and consequently, are not
devoidof object and purpose."32
50. By Resolution AIES-10114, the General Assembly requested the Court
"urgently torender its advisory opinion" on the question submitted. The urgency and
relevance of the question are underscored by the events which have taken place since
the Request was received by the Registry of the Court. Thus, on 18December 2003,
only eight days after the Court received the Assembly's request, Israel's Prime
Minister gave a keynote address at the "Herzliya Conference"in which he laid out a
"DisengagementPlan" accordingto which Israel would soon take unilateral measures
affecting Israel'sborders with Palestine. The PrimeMinister said specifically: "Israel
will greatly accelerate the construction of thesecurity fence." The speech leaves no
doubt about plans to impose a unilateral settlement on the Palestinian territory
occupiedby Israel by severingthem along the line of the Wall.
51. It is evident that an advisory opinion on the request made by the General
Assembly will be of great practical value and of real importance for the Assembly in
its consideration of the situation. Resolution AIES-1011 3 of 21 October 2003,
constitutingthe Assembly's first pronouncementon the Wall, referred in paragraph 3
to "fiher actions [which] should be considered, if necessary, within the UnitedNations system." In this context, it does not matter that legal aspects relating to the
Wall are being considered in other fora, including Israel's highest court.33
Consequently,the questionput tothe Court is not devoid of object or purpose.34
52. The request by the General Assembly in this case gives the Court an
opportunityto clari@important questions of international law of direct and practical
relevanceto an item which has been on the agenda of the GeneralAssembly for many
years, and as to which the GeneralAssemblyhas been a major a~tor.~'Answeringthe
request by the Court would enlightenthe Assembly on the legal aspects involved and
the legalcontextfor its continuinginvolvementin the future of ~alestine.~~
53. An advisory opinion on the specific question put to the Court would not
adversely affect the ongoing efforts to solve the larger Israeli-Palestinian question.
On the contrary, a statement by the Court on the legal consequences of the
constructionof the Wall in the OccupiedPalestinianTerritory under international law
can facilitate such efforts by authoritatively establishing the present legal situation.
An independentand impartialpronouncement by theCourt on the legal consequences
of Israel's construction of the Wall is in no way incompatible with the pursuit of
negotiations,now or in the future.
32 WesternSahara,Advisory Opinion,I.C.J. Reports 1975,p. 12,at 37, para. 73.
33 See Legality of the Threat or Use of Nuclear Weapons,Advisory Opinion, I.C.J. Reports
3496,p. 226, at 233, para. 12.
35 Cf. WesternSahara,Advisory Opinion,I.C.J. Reports 1975,p. 12,at 37, para. 73.
Cf. id. at 37, para. 72 ("In general, an opinion given by the Courtin the present proceedings
will fumish the General Assembly with elements of a legal character relevant to itsfurther treatment of
the decolonization ofWestem Sahara.").
36 See Applicability of Article VI, Section 22, of the Convention on the Privileges and
Immunities of the UnitedNations, Advisory Opinion,I.C.J. Reports 1989, p. 177, at 188-189, para. 31
("The jurisdiction of the Court under Article 96 of the Charter and Article 65 of the Statute, to give
advisory opinions on legal questions,ables United Nations entities to seek guidance fromthe Court
inorder to conduct their activities in accordance withlaw.").54. Rather, it is actions such as Israe17sdecision to continue and accelerate its
construction of the Wall in the Occupied Palestinian Territory, especially in and
around East Jerusalem, notwithstanding the resolutions of the United Nations which
are far more likely to be detrimental to on-going efforts, in the United Nations and
elsewhere, to solve the larger Israeli-Palestinian question. Palestine maintains its
hope that Israel will cease its construction activities in the face of these advisory
proceedings. Continued construction and operation of the Wall can only destroy the
potential for any negotiated settlementof the Israeli-Palestinianconflict.
(b) The Eastern Carelia Caseis distinguishablefromthe present case
55. The precedent of the Eastern Carelia Case as dealt with by the Permanent
Court of InternationalJustice is of no relevance to the presentcase.37In that case, the
Council of the League of Nations had asked the Permanent Court if the Treaty
between Finland and Russia of 14 October 1920 and its Annex relating to the
recognition of the autonomy of Eastern Carelia, a Russian region, was binding on the
Soviet Federative Republic of Russia. The Council had adopted its resolution after
Finland, a Member State of the League of Nations, brought a contentious dispute
between itself and Soviet Russia, a non-Member State, before the Council
notwithstanding the fact that Soviet Russia rejected the invitation to submit the
question of Eastern Carelia to the examination of the Council on the basis of Article
17of the Covenantof the League.
37
Status ofEastern Carelia,Advisory Opinion, 1923,P.C.I.J.Series B, No. 5.
2556. The main ground of the decision of the Permanent Court to refuse to give its
opinion was thatthe League Council was not competent, absent the consent of Soviet
Russia, to handle the issue under the Covenant and was, therefore, incompetent to
requestan advisoryopinion.
57. According to the Permanent Court, there were other "cogent reasons"
justi@ing its refusal to give an advisory opinion, especially that the Court could not
ascertain controverted questions of fact in the absence of a party. The Permanent
Court pointed out that the request encompasseda dispute between Finland and Soviet
Russia, that the latter was not a member of the League of Nations, that it had not
consented to the competence of the Court, and that it refused to participate in the
Court'sproceedings.38
58. Despite fiequent requests by States, since 1949, that it should not on a
particular matter give an advisoryopinion for reasons ofjudicial propriety, the present
Court has never acted upon the exception applied by the Permanent Court in the
Eastern Carelia Case and has never exercised its discretion not to give an advisory
opinionrequested fromit.
59. There are strong reasons for this record and why the sole precedent of the
PermanentCourt is not governingin this case.
38 The Permanent Court's refusa1was mainly based, not as it is sometimes alleged, on the
absence of Soviet Russia's consentto the advisory procedure itself. In fact,the Courtit was
"unnecessary" incasu to deal with the issue "whether questionsfor advisory opinion, if they relate to
matters which form the subject of a pending dispute between nations, shouldbe put to the Court
without the consent of the parties."
Ibid at 27. That was not the issuThe Court found its main
ground forrefusal upstream, namely, inthe incompetenceof the Council to deal with the question.60. First, it should be noted that no organic relation existed between the
Permanent Court of International Justice and the League of Nations. At the time
(1923),the Statute of the Permanent Court did not include any provisions specifically
dealing with advisoryproceedings, which may explain the cautious attitude displayed
by the PermanentCourt in the Eastern Carelia Case.
61. In contrast,the International Court of Justice is the principaljudicial organ of
United Nations pursuant to Article 92 of the United Nations Charter and Article 1 of
the Statute, which forms an integral part of the Charter. This fact, in combination
with the wording of Article 96 of the Charter and Article 65 of the Statute, has
important ramifications for the Court's approach to its advisoryjurisdiction, as was
demonstrated ab~ve.~~
62. Second, a major reason for the dismissal in the Eastern Carelia Case was
that the Permanent Court regarded the central issue before it as one of fact which it
could not resolve without the participation of both disputing States. 40 On this point,
in the words of the Court in the Namibia Case, the Eastern Carelia Case "is not
relevant, as it differs from the present one.'" In the present case, the Court is not
confronted with a question involving extensive factual issues which could not be
39
Referring to the impact of the status of the Court as the "principal judicial organ" of the
United Nations on the Eastern CareliaCase, no lesser authority than Sir Hersch Lauterpacht concluded
that theEastern Carelia Case "can no longer be regarded as a precedent of authority." Sir Hersch
Lauterpacht, The Development of International Lawby the International Court(2nded., 1958), p. 248.
Seealso Shabtai Rosenne, TheLaw and Practiceof the International Court, 1920-1996,Vol. II (31ded.,
1997),p. 1061("the comparison isbetween two unlikes.").
40 Status of Eastern Carelia, Advisory Opinion, 1923,P.C.I.J. SerieB, No. 5, p. 29 ("The
question put to the Cour..can only be decided by an investigation into the facts underlying the case."
41mphasis added)).
Legal Consequencesfor Statesof the ContinuedPresence of South Africa in Namibia (South
WestAfrica) notwithstandingSecuriS CouncilResolution 276 (1970),Advisoiy Opinion,1.C.J.Reports
1971,p. 16,at 23, para. 31.elucidatedwithout hearingboth Israel and Palestine or which it could not establish on
its own failing such participation. Soviet Russia, the State that refused to cooperate
with the Counciland the Permanent Court, was not at the time a Member State of the
Leagueof Nations. Israel is a Member State of the United ~ations.~~Palestine for its
part is a permanent observer fully participating in this proceeding. The Request
concernsterritory which has alwaysbeen within the remit of the United Nations fiom
its earliestdays.
63. Whether or not Israel participates in this proceeding is irrelevant. As was
demonstrated above in connection with the requirement of a "legal question," the
establishment of relatively simple facts is within the scope of the Court's judicial
function. As the Court has stated, "the issue is whether the Court has before it
sufficientinformationand evidenceto enable it to arrive at ajudicial conclusionupon
any disputedquestionsof fact the determinationof which is necessary for it to give an
opinion in conditionscompatiblewith its judicial ~haracter."~~The Court can rely on
United Nations documents in the record in establishing the facts in this case and on
publicly available information setting forth in detail the position of Israel with regard
to the Wallbeing built by it in the OccupiedPalestinian Territory.
42
The Web site of BBC News included the following report on 9 December 2003, the day
following the adoption of the Assembly's request for an advisory opinion: "Israel reaffirmed its
determination to defend itself at the court in The Hague. 'We aren't runningaway', said Raanan Gissin,
a senior adviser to Israeli Prime Minister Ariel Sharon. 'We will fightOurbattle at .We'llgue
present Ourcase ..."BBC News report, text a<www.bbc.co.uW2/hi/middleeeast/3302637.stm>.64. It is recalled that the Permanent Court emphasized in the Eastern Carelia
Case that:
"the Court does not Saythat there is an absolute rule that the request 7744
for an advisoryopinion may not involve some enquiry as to fact ... .
There are independent sources of information regarding the construction of the Wall
and the regime it represents. This includes the United Nations documents submitted
to the
65. Third, the fact that the matter to which the present request for an opinion
relates is in dispute between Israel and Palestine is not in itself a ground for refusing
to complywith the request. As the Courthas stated:
"the existence, in the background, of a dispute the parties to which may
be affected as a consequence of the Court's opinion, does not change
the advisory nature of the Court's task, which is to answer the
7746
questionsput to it ....
43 WesternSahara,Advisory Opinion,I.C.J. Reports 1975,p. 12,at 28-29, para. 46.
44 Status of Eastern Carelia, Advisory Opinion, 1923, P.C.I.J.Series B, No. 5, p. 28. As the
Court has explained, "it was the actual lack of 'matenals sufficient to enable it to arrive at anyjudicial
conclusion upon the question of fact' (P.C.I.J., Series B, No. 5, p.28) which was considered by the
Permanent Court, for reasons of judicial propriety, to prevent it from giving an opinion." Western
Sahara, Advisory Opinion,I.C.J. Reports 1975, p. 12,at 28, para. 46. See also Manley O. Hudson, The
Permanent Court of International Justice, 1920-1942,A Treatise (1943), p. 498 ("In the Danube
Commission Case, the Court stated that since the facts had been investigated by the League of Nations
it was not 'proper to make new investigations and enquiries'; theRumanian Govemment had refused to
accept the facts found by a League committee, but the Court thought that it should 'accept the findings
of the Committee on issues of fact unless in the records submitted to the Court there is evidence to
refute them."' Jurisdiction of the European Commission of the Danube, Advisory Opinion, 1927,
P.C.I.J., Series B, No. 14).
45 It also includes official United Nations Web sites. For example, the Humanitarian
Information Centre in the Occupied Palestinian Territory of the United Nations Office for the
Coordination of HumanitarianAffairs (OCHA) maintains a Web site which includes maps pertaining to
the Wall in the Occupied Palestinian Temtory and United Nations translations of military orders of the
Israel Defense Forces declaring the "seam zone" a closed area. See <www.reliefiveb.int/hic-
opt/top.htm>.
46 Applicationfor Review ofJudgement No. 158 of the UnitedNations Administrative Tribunal,
Advisory Opinion,I.C.J. Reports 1973, p. 166, at 171, para. 14. For a summary of the Court's earlier
jurisprudence on this point , see Sir Gerald Fitzmaurice, The Law and Procedure of the International
Court ofJustice, Vol. Two (repr. 1995),pp. 566-567.66. While in the present case the question asked by the General Assembly does
relate to an important controversy between Israel and the majority of the Member
States of the United Nations, as is clear from General Assembly Resolutions AIES:
1011 3 and A/RES/AIES-10114,the Court itself has recognized that underlying each
request for an advisory opinion it is probable that there will be a controversy which
has led the organizationto make the request:
"Differences of view amongst States on legal issues have existed in
practically every advisory proceeding; if al1were agreed, the need to
resort to the Court foradvice would not ari~e."~'
67. Moreover, as the Court stated in the Opinion it gave in 1973conceming the
Application for Review of Judgement No. 158 of the United Nations Administrative
Tribunal:
"[tlhe existence, in the background, of a dispute the parties to which
may be affected as a consequence of the Court's opinion, does not
change the advisory nature of the Court's task, which is to answer the
questionsput to it ....748
(c) The nivina of an advisory opinion does not depend on the consentof
any particular Stateor group of States, andno Statecan preventthe
givinn of anopinion
68. The fact that Israel has voted againstthe resolution adoptingthe request does
not constitute a compelling reason preventing the Court from giving an advisory
47 Legal Consequencesfor States of the ContinuedPresence of SouthAfiica in Namibia (South
WestAfiica) notwithstandingSecurity CouncilResolution276 (1970),Advisory Opinion,I.C.J. Reports
1971,p. 16,at 25.
48 1.C.J.Reports 1973,p. 171,para14(cited with approvinDifference relating to Immunity
from Legal Process of a Special Rapporteur of the Commission onan Rights, Advisory Opinion,
I.C.J.Reports 1999,p. 62,para. 25).opinion. The Courthas repeatedly affirmed that "[tlhe Court's Opinionis given not to
the States,but to the organ which is entitled to request it ....,Y49
69. The Courthas made it clear that:
"[nlo State ... can prevent the giving of an Advisory Opinion which
the United Nations considers to be desirable in order to obtain
enlightenmentas to the course of action it should take."50
70. The Court has indicated that by becoming a party to the Charter and the
Statute, a State has given its consent to the exercise of the Court's advisory
juri~diction.~~Indeed, it has pointed out that a State "could not validly object to the
GeneralAssembly's exerciseof its powers ...to seek an opinion on questionsrelevant
to the exercise of those powers."52 Similar to the situation in Western Sahara, the
present case:
"arose during the proceedings of the General Assembly and in relation
to matters with which it was dealing. It did not arise independently in
bilateral relation^."^^
71. In sum, the Court is entitled "to act independently of any forma1expression
of consent on the part of States indi~iduall~"~~ and the giving of the opinion does not
49 Interpretation of Peace Treaties with Bulgaria, Hungary and Romania, First Phase,
Advisory Opinion, I.C.J. Reports 1950, p. 71. See also Legality of the Threat or Use of Nuclear
50apons,Advisory Opinion,I.C.J.Reports 1996, p. 226, at 235, para. 14.
Interpretation of Peace Treaties with Bulgaria, Hungary and Romania, First Phase,
Advisov Opinion, I.C.J. Reports 1950, p. 71; see also Applicability of Article VI, Section 22, of the
Convention on the Privileges and Immunities of the United Nations, Advisory Opinion,I.C.J. Reports
1989,pp. 188-189.
51 Legal Consequencesfor States of the Continued Presenceof South Africa in Namibia (South
WestAfrica) notwithstandingSecurity CouncilResolution 276 (1970),Advisory Opinion,I.C.J.Reports
1971,p. 16,at 23, para. 31.
52 Western Sahara, Advisory Opinion,I.C.J. Reports 1975, p. 12, at 24, para. 30 (emphasis
53ded).
54 Ibid. at 25, para. 34.
Shabtai Rosenne, TheLaw and Practice ofthe International Court, 1920-1996,Vol. II (31d
ed., 1997),p. 989.depend on the consent of any particular State or group of States. It is not for any State
or organ to decide in lieu of the General Assembly on the "desirability" or the
"opportunity" of the request or to ovenule it, when the Assembly has already
consideredit desirable.
72. The Court has evengone as far as to Say:
"It is not for the Court itself to purport to decide whether or not an
advisory opinion is needed by the Assembly for the performance of its
functions. The General Assembly has the right to decide for itself on
theusefulness of an opinion in the light of its own need~."~~
(d) The mere fact that the question may have been politically motivated
cannotpreventthe Court from rendering its advisoryopinion
73. The Court has stated that, as a rule, it will not question the propriety of the
requesting organ's action.56
74. The Court has consistently affirmed that it "cannot attribute a political
character to a request which invites it to undertake an essentially judicial ta~k."~'
Where the Court has been asked to characterize a particular form of behaviour with
respect to the provisions of treaty and customary international law, the Court is
performing a task which is essentiallylegal. The concrete legal question on which the
Court's opinionhas been requested relates to the compatibility of the construction of
the Wall in the Occupied Palestinian Territory with international law. In asking the
55 Legality of the Threator UseofNuclear Weapons,Advisory Opinion,I.C.J. Reports 199p.
226, at 235, para. 16.
56 Ibid.
57 Certain Expenses of the United Nations, Advisory Opinion,I.C.J. Reports 1962, p. 155;
Condition of Admission, Advisoiy Opinion, I.C.J. Reports 1947-1948, p. 61; Cornpetence of the
GeneralAssemblyfor the Admissionof a State to the UnitedNations,Advisoiy Opinion, I.C.J.ReportsCourt to characterizethe behaviour (i.e., the construction of the Wall in the Occupied
Palestinian Temtory) in the context of rules of positive law, the General Assembly is
invitingthe Court, in effect, to carry out a task which falls within the normal exercise
of itsjudicial powers.
75. In connection with the Assembly's previous request for an advisory opinion,
the Court neatly sumrnarizeditsjurisprudence on "political" aspects. 58
76. It is thus clear from the Court's jurisprudence that it is not for the Court to
delve into the motivation which leads a duly authorized organ to request an advisory
opinion on a legal question obviously falling within the jurisdiction of that organ,
even when that question relates to an issue which has other important political facets.
In the request before the Court,the legal questions are clear and the Court can answer
them without enquiring into any apparentor hidden political motives or otherpolitical
facets of the issue.59
1950, pp. 6-7; Interpretation of the Agreement of 25 March 1951 between the WHO and Egypt,
Advisory Opinion,I.C.J. Reports 1980,p. 87,para. 33.
58 Legaliîy of the Threator Useof Nuclear Weapons,Advisory Opinion,I.C.J. Reports 1996,p.
226, at 234, para. 13. The Court's earlier jurisprudence has affirmed that it is not concemed with the
motives which prompted the decision to make the request and that it will have no regard for the
circumstances which led to the making of the request. See, e.g., Conditions ofAdmission of a State to
Membership in the United Nations (Article 4 of the Charter), AdvisoryOpinion, 1948, I.C.J. Reports
1947-1948,p. 57, 61; Competenceof the GeneralAssemblyfor the Admission of a State to the United
Nations,Advisory Opinion,I.C.J. Reports 1950,p. 6.
59 On a previous occasion, the. Court clearly indicated that the existence of a political
controversy at the background of the question put to the Court is no reason for it to decline to give the
advisory opinion requested. See Legal Consequencesfor States of the Continued Presence of South
Afvica in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970),
Advisory Opinion, I.C.J. Reports1971,p. 16,at 27, para. 27.(3) Conclusion
77. For the reasons set out above, the Court is competent to give an advisory
opinion in this case onthe basis that the General Assembly is competentto request an
advisory opinion fiom the Court on the subject-matterof the request, and there are no
compelling reasons preventing the Court fiom giving its opinion on the question
submitted. PART B. FACTUALBACKGROUND
Chapter3. A CHRONOLOGY OF THE MAIN EVENTS CONCERNING
PALESTINE
(1) The Territory of Palestine
78. Historically, Palestine is the temtorial unit that was ultimately demarcated
and defined by the League of Nations soonafter the close of the First World War. It
was made subject to the mandate regime (Class 'A') established by Article 22 of the
League's Covenant and Britain was designated the Mandatory Power in 1922. The
mandate over Palestine became operative when the Council of the League of Nations
approvedit on 29 September 1923.
79. The mandate regime over Palestine incorporated what was known as the
Balfour Declaration, which was issued by Britain on 2 November 1917. The
Declaration, in its final text, provided for the establishment in Palestine of a Jewish
national home:
"it being clearly understood that nothing shall be done which may
prejudice the civil and religious rights of existing non-Jewish
communities in Palestine, or the rights and political status enjoyed by
Jews in any other country."
These two safeguard clauses were introduced into the Balfour Declaration upon the
insistenceof the British government.
80. In the period between 1917, when Britain was able to oust the Ottoman
forces from Palestine, and 1948, Britain was, first, the occupying power, and from1923,became the mandatory power in Palestine. In both capacities, Britain exerted
efforts to facilitate the creation of the 'Jewish national home'. It relaxed the
immigration procedures and removed restrictions on the sale andlor acquisition of
land to Jewish immigrants. However, this policy created the conditions for rising
tensions and disturbances in Palestine between Jewish immigrants and Palestinian
inhabitants.
81. With the increase of tension in Palestine between Palestinian inhabitants and
Jewish immigrants and the demise of the League of Nations, Britain formally
requested, on 12 April 1947,the UN Secretary-Generalto convene a special session
of the General Assembly for the creation of a special comrnittee to prepare for the
discussionof the questionof ~alestine.~'
82. On 15May 1947,the UN GeneralAssemblyadopted a resolutionauthorizing
an eleven-country Special Committee on Palestine ('UNSCOP') to study and make
recommendationsrelevantto the questionof Palestine.
83. The UNSCOP report, made public in September 1947, contained two
proposals for Palestine.The majority of the UNSCOPmembers proposedthe partition
of Palestine into (1) an Arab State, that was allocated 42.88% of the territory of
historical Palestine; (2) a Jewish Statethat was allocated 56.47% of that territory; and
(3) an independent Jerusalem in 0.65% of Palestine to be under a UN Trusteeship
60 As the Court decided in 1950with regard to South West Africa (Namibia), the winding up of
the League of Nations in 1946did not put an end to the international status of mandated territories. The
General Assembly assumed the exercise of supervisory authority over al1mandated territories which
had not become independent by 1946,and did so whether or not territories were transferred to thesystem. The plan also proposed an economic union between the Arab and Jewish
States. On 29 November 1947, the General Assembly, favouring the UNSCOP
partition plan, adopted the two-State plan in Resolution 181 (II) by a vote of 32 in
favour to 13againstwith 10abstentions.
84. On 15May 1948,British troops and administration withdrew from Palestine.
On or about that day, the 'Jewish Agency for Palestine' unilaterally declared a
sovereignState of Israel on the "strength" of General Assembly Resolution 181(II).
85. In the period between December 1947 and January 1949, war broke out. In
the first six months, the fighting was local in nature, fought between Jewish
paramilitary groups and Palestinian inhabitants. After that, the war was fought
between Arab and Israeli amies. As a result of that war, the Israeli army occupied
about one-half of the land that was allotted to the Arab State in Resolution 181 (II).
Mandated Palestine was effectively dissected into three territorial parts. The largest
part came under Israeli control. The second largestpart, now known as the West Bank
including East Jerusalem, came under Jordanian control, and was subsequently
merged with the Hashemite Kingdom of Jordan on 24 April 1950.~~The third part,
now called the Gaza Strip, came under Egyptian control and later was put under the
administration of the Egyptian Govemment with the approval of the League of Arab
States on 13April 1950.
Trusteeship System. The exercise of this authority was consistently upheld by this Court in a series of
61visory opinions.
In July 1988,Jordan announced that it was cutting its legal and administrative ties with the
West Bank,thereby rescinding the 1950Act of Union.86. The war endedwith the Armistice Agreements concludedbetween Israel and
Egypt in February 1949,Lebanon in March 1949, Jordan in April 1949,and Syria in
July 1949. The area of the West Bank, including East Jerusalem, was demarcated in
the Jordanian-IsraeliArmistice Agreement and the Armistice Line came to be widely
known as the "Green Line." The area of the Gaza Strip was demarcated in the
Egyptian-IsraeliArmisticeAgreement.
87. On 11 May 1949, Israel was admitted as a member of the United Nations
followingtherecommendationmade to the GeneralAssemblyby the SecurityCouncil
in Resolution 69 of 4 March 1949. In admitting Israel, the General Assembly, in
Resolution 273 (III), specifically referred to Israel'sndertakings to implement
Resolution 181 (II) and Resolution 194 (III) of 11 December 1948 as well as to the
declarations and explanations made by the representative of Israel before the hoc
PoliticalCommitteein respect of the implementationof those resolutions.
88. On 5 June 1967, the Six Day War erupted. Israel was able to occupy the
whole of the Gaza Strip and the whole of the West Bank (including East Jerusalem),
in additionto other territoriesin Egypt and Syria.
89. On 22 November 1967, the UN Security Council unanimously adopted
Resolution242 (1967),which has becomethe basic platform for a peaceful settlement
in the Middle East. This resolution upholds, inter alia, the principle of the non-
admissibilityof the acquisition of territory by force and demands that Israel's armed
forces should withdraw from territories "occupied in the recent conflict". The
reference in the resolution to the recently occupiedterritories obviously meant thoseterritories situated beyond the Armistice Lines (this of course included Egyptian and
Syrian territories occupied by Israel inJune 1967). In particular, and for the pwpose
of this case, these territories are the West Bank, including East Jerusalem, and the
Gaza Strip which are the subject of reference in the ensuing analysis. (Henceforth,the
West Bank and the Gaza Stripare calledthe Occupied PalestinianTerritory('OPT').)
90. The Israeli Government began its functions in the Occupied Palestinian
Territory as an Occupying Power. Since 1967,Israel has been governingthe Occupied
Palestinian Territory by virtue of Military Orders that the army commanders in the
West Bank and the Gaza Strip issue from time to time. The conclusion of the Oslo
Accords did not lead to a change in that practice in spite of the fact that the
Declaration of ~rinci~les~~ and the Interim ~~reement~~provided for the withdrawal
of the Israeli Military Government from the Occupied Palestinian Territory. Israe17s
occupation of the Occupied Palestinian Territory is discussed in detail in later
chapters of this Written Statement.
(2) Jerusalem
91. Under the Partition Resolution 181(II), Jerusalem was designated as a corpus
separatum under an international regime to be administrated by the UN. However,
when the 1947148war broke out, the Israeli forces occupied West Jerusalem and the
Jordanian army remained in East Jerusalem. The de facto division of the City of
Jerusalem was formalizedin the Jordan-IsraelArmistice Agreement of 1949.92. On 23 January 1950,Israel declared that Jerusalem was its capital. No other
Staterecognizedthis declaration.However, after the Six Day War in June 1967,Israel
initially utilized local legislation to change the legal status of the entire area of
Jerusalem. On 27June 1967,the Israeli Parliament (the Knesset) passed three laws as
a result of which the Israeli governmentincorporatedthe whole of Jerusalem area into
the municipal and administrative spheres of its government. (See Chapter 4 for more
details in this regard.)
93. On 30 July 1980,Israel's Knesset adoptedthe BasicLaw: Jerusalem, Capital
of 1srae1.~~ Article 1 reads: "Jerusalem, complete and united, is capital of Israel".
Article 2 providesthat "Jerusalem is the seatof the President of the State,the Knesset,
the Governmentand the SupremeCourt".
94. The UN General Assembly responded to this Israeli action by adopting
Resolution 351169E on 15 December 1980, in which the Assembly affirmed in
operativeparagraph (2):
"that the enactment of the 'BasicLaw' by Israel constitutes a violation
of internationallaw and doesnot affectthe continued application of the
Geneva Convention relative to the Protection of Civilian Persons in
Time of War of 12 August 1949, in the Palestinian and other Arab
territoriesoccupied sinceJune 1967,includingJerusalem;. .."
TheAssembly'sposition has beenconsistentlyupheld in subsequentresol~tions.~~
62
63 Articles XII1and XV. Seenote 71 infra.
64 Article X, Annex 1,Art. 1.5.See note 75 infra.
65 Laws of the State of Israel, Vol. 34 (1979/80),p. 209.
For example, 421209B,C& D; 44/42 of December 8, 1989.95. The Security Council has, likewise, consistently rejected any attempt by
Israel to change the legal status of Jerusalem. In its Resolution. 252 (1968) of
21 May 1968,the Council:
"Consider[ed] that al1 legislative and administrative measures and
actions taken by Israel, including expropriation of land and properties
thereon, which tend to change the legal status of Jerusalem are invalid
and cannot change that status;"
96. This resolution was followed by Resolution 267 (1969) of 3 July 1969.
Further, in ResolutionNo. 271 of 15 September 1969,the Council called upon Israel,
in operativeparagraph 4, to adhereto the Fourth Geneva Convention and international
law "governing military occupation". In its Resolution 298 (1971) of 25 September
1971,the Council:
"Urgently call[ed] upon Israel to rescind al1 previous measures and
actions and to take no further steps in the occupied section of
Jerusalemwhich may purport to changethe status of the City.. ..."
97. The Security Council reacted to the Basic Law and adopted Resolution 478
(1980) of 20 August 1980by 14votes in favour to none against, with one abstention,
and expressed its deep concern over the enactment of the Basic Law by Israel. The
Council:
"Afirm[ed] that the enactmentof the 'basiclaw' by Israel constitutes a
violation of international law and does not affect the continued
application of the [Fourth] Geneva Convention [. ..] in the Palestinian
and other Arab territories occupied since June 1967, including
Jerusalem"
and detennined to consider al1actions taken by Israel, in particular the 'basiclaw', as
nul1 and void. The Council called on those states having established diplomatic
missions at Jerusalemto withdraw such missionsfrom the Holy City.98. The Council has been consistent in treating Jerusalem as an occupied
territory and in calling on Israel to adhere to the Fourth Geneva on vent ion.^^
(3) The PalestinianPeople
99. On 31 December 193 1, the British Govemment conducted a census in
Palestine,the results of which were published in the Censusof ~alestine.~'The results
showed that there were slightly more than one million people living in Palestine, of
whom about 84% were Palestinian Arabs and about 16% Jews. Most of the Jewish
population consistedof recent immigrants. The last officially released statistics for the
Palestinian population were published in December 1947, showed that there were
about 1.3 million Palestinians and about 590,000 Jewish residents at that time. This
fact demonstratesthat, even after the influx of Jewish immigration, the majority of the
population consistedof PalestinianMuslims and Christians.
100. The Partition Plan of 1947,as mentioned above, allocated less than 43% of
the territory for about 70% of the population, and about 56% of the territory for about
30% of the population. As such,the Palestinianpeople rejected the plan.
101. As a result of the events in the years between 1947and 1949,the Palestinian
people sufferedultimate defeat,resulting in the loss of 78% of the Palestinian territory
and the subversion of their right to self-determination, and the creation of a severe
66 For example, Resolution 694 of 24 May 1991;andResolution 1073of 28 September 1996.
67 E. Mills (ed.1932) Census of Palestine 1931 - Population of Villages, Towns and
Administrativerea.refugee problem, with at least half of the Palestinians uprooted from their homes and
land.
102. On 11 December 1948,the General Assembly adopted Resolution 194 (III),
paragraph 11of which resolvedthat:
"the refugees wishing to return to their homes and live in peace with
their neighbours should be permitted to do so at the earliest practicable
date, and that compensation should be paid for the property of those
choosing not to return and for the loss or damage to property which,
under the principles of international law oin equity, should be made
goodby the Governmentsor authoritiesresponsible".
This resolution has been repeatedly upheld, virtually every year, by the UN General
Assembly.
103. On 8 December 1949, the General Assembly passed Resolution 302 (IV),
which established the UN Relief and Works Agency for Palestine Refugees
('UNRWA'). The numberof refugees that were registered with UNRWAhad reached
940,000by that time.68
104. This tragedy was augmentedwhen the June War of 1967gave birth to a new
class of refugees, now called 'displaced persons'. Their number reached 325,000
persons. The Security Council, in Resolution 237 (1967) of 14June 1967called upon
Israel "to facilitate the return of those inhabitants who have fled the areas since the
outbreakof hostilities".
68
Annual Report of the Secretary-General on the Work of the Organization, July1, 1948 to
June 30, 1949, 102.105. In spite of the fact that the number of refugees and displaced persons has
doubled severaltimes, their problem remainsunresolved.
106. The Palestinian people, however, were able to re-gain recognition of their
right of self-determinationon the internationallevel. In Resolution 26(XXV) of 30
November 1970, the General Assembly expressed concern that, because of alien
domination, many peoples were being denied the right of self-determination. The
Assembly condemned those governments which denying the right to peoples
"recognized as being entitled to it, especially the peoples of southern Africa and
Palestine". InResolution 2672 C of 8 December 1970,the General Assembly stated
that it:
"1. Recognizes that the people of Palestine are entitled to equal
rights and self-determination in accordance with the Charter of the
UnitedNations;
Declares that full respect for the inalienable rights of the people of
Palestine is an indispensableelement in the establishmentof ajust and
lastingpeace in the Middle East."
107. This recognition has been continuously affirmed by the General Assembly
and by other organs of the United Nations. As a matter of record, the world
cornrnunity at large now recognizes the right of the Palestinian people to an
independentand viable State.
(4) The Palestinian RepresentativeEntity
108. Afterthe demise of the OttomanEmpire on the heels of the First WorldWar,
and the British occupation of Palestine, an Arab congress, consisting of
representatives of various Palestinian cities and towns, convened in Haifa in 1920.That Congress elected the Arab Executive Committee ('AEC') which functioned until
1936.In that year, the AEC was succeededby the Arab Higher Committee ('AHC'),
which exhibited a considerable degree of effectiveness within the Palestinian
community.Both the AEC and the AHC gained recognition at various political levels,
including with the Mandatory Govemment. The AHC appeared before the British
Royal Commission in 1937as the representative of the Palestinian people. The British
Government also invited the AHC to participate in the first and second London
Conferencesof 1939and 1946.
109. When UNSCOP visited Palestine in its search for a solution, it invited the
AHC to participate and present the views of the Palestinian people. The AHC also
participated as a recognized body in the deliberations of theUN General Assembly's
First Committee in May 1947.On 1April 1948,the SecurityCouncil in Resolution43
(1948) called upon
"the Jewish Agency for Palestine and the Arab Higher Committee to
make representatives available to the Security Council for the purpose
of arranging a truce between the Arab and Jewish communities of
Palestine;"
110. When the UNSCOP Partition Plan was made public, the AHC declared itself
the Govemment of Al1~alestine.~~ The new govemment was recognized by five Arab
States and Afghanistan. It joined the Arab League where it participated with full
voting rights on al1issues conceming Palestine. It continued to entertain that status
until it was succeeded in 1964by the PalestineLiberation Organisation.
69
Text in the Palestine Yearbook of International Law ('Palestine YBIL'), Vol. 4 (1987188)
p. 294.111. On 20 May 1964, the Palestine National Council ('PNC') convened in
Jerusalem and declared the creation of the Palestine Liberation Organisation (the
'PLO'). The PNC participants were Palestinians representing their respective
comrnunities. The PNC elected the PLO's executive branch which was called the
Executive Committee which, in turn, elected the Chairman of the Committee. The
PNC subsequentlydecided to elect a Central Council to act on its behalf between
regular PNC sessions.
112. The PL0 asserted that it was the sole and legitimate representative of the
Palestinianpeople. After the June war of 1967,the PL0 gained status and recognition.
It became a full memberof the League of Arab States, and in 1973,the Arab Summit
held in Algiers, recognized the PL0 as the "sole representative of the Palestinian
people."
113. Outside the Arab region, the PL0 received international recognition which
enhanced its status. In addition to diplomatic recognition by over 100 States, the
General Assembly adopted Resolution 3236 of 22 November 1974, in which it
recognized that thePL0 was the "representative of the Palestinian people [. .]". On
that samedate, the Assembly adoptedResolution 3237, grantingobserver statusto the
PL0 and invitingit to participate in the sessions and the work of the Assembly in that
capacity.
114. At its 1859~~ eeting on 4 December 1975,the UN SecurityCouncil likewise
decided to invite thePL0 to participate in its discussion concerning the Israeli raids
against Palestinian refugee camps in Lebanon. That invitation was extended to thePL0 with the same rights of participation accorded under rule 37 and not on the basis
of rule 39 of the Council'sprovisional rules of procedures. Rule 37 applies to "[alny
Member of the United Nations which is not a member of the Security Council...";
rule 39 applies to 'persons'.The Council now routinely invites Palestine to participate
when the Council discusses the situation in the Middle East, including the Palestinian
question.
115. On 20 December 1988, the UN General Assembly adopted Resolution
431177, accordingto which the Assembly expressed its awareness of the proclamation
of the State of Palestine by the Palestine National Council in line with General
Assembly Resolution 181 (II) and in exercise of the inalienable rights of the
Palestinian people. The Resolution acknowledged the proclamation of the State of
Palestineby the PNC on 15November 1988and,
"[d]ecide thdt, effective as of 15 December 1988, the designation
of 'Palestine' shouldbe used in place of the designation 'Palestine
LiberationOrganisation'in the UnitedNations system ..."
116. On 7 July 1998, the General Assembly ovenvhelmingly adopted
Resolution 521250, conferring upon Palestine additional rights and privileges of
participation, which are reserved for Member States, including the sponsorship of
draft resolutionsrelatedto the questionof Palestine.
117. With such a representativecapacity and status,the PL0 signedwith Israel al1
agreements and correspondences that have been produced under the so-called Oslo
peace process. On 9 September 1993, Yasser Arafat, the Chairman of the PL0
Executive Committee, exchanged with Mr. Yitzhak Rabin, then Israeli PrimeMinister, letters of Mutual Recognition by the PL0 and ~srael.~'The Declaration of
Principles on Interim Self-Government Agreements of 13 September 1993,~'
Agreement on the Gaza Strip and the Jericho Area of 4 May 1994,~~ Agreement on
PreparatoryTransferof Powers and Responsibilitiesof 29 August 1994,~~Protocol on
Further Transfer of Powers and Responsibilities of 27 August 1995:~ the Israeli -
PalestinianInterimAgreement on the West Bank and the Gaza Strip of 28 September
1995:~ Protocol Conceming the Redeployrnent in Hebron of 17 January 1997,~~
Sharm El-Sheikh Memorandum of 4 September 1999,~~Protocol Conceming Safe
Passage between the West Bank and the Gaza Strip of 5 October 1999~*,and
subsequent arrangements,were al1signed and executed by the State of Israel and the
PLO.
(5) The PalestinianAuthority
118. Followingthe signing of the Declaration of Principles, the Palestine Central
Council, acting on behalf of the PNC, convened in Tunis on 10-11 October 1993. In
that meeting, the Council endorsed the Oslo Agreement and resolved to establish the
Palestinian Authority('PA'), nominated Yasser Arafatto be the president of the PA
and authorizedhim to select its members. The PA was made accountable to the PL0
ExecutiveCommittee.
The Palestine YBIL., Vol.7 (1992/1994),p. 230.
Ibidp.232.
Ibidp.243.
The Palestine YBIL., Vol.8 (1994/1995),p. 315.
Ibid ..341.
Ibidp.,353.
The Palestine YBIL.,Vol. 9 (1996/1997),p. 437.
The Palestine YBIL., Vol. 11(2000/2001),p. 339.119. The PA was structured like any council of ministers, with each member to
cany one portfolio. The Palestinian security forces that were established were kept
under the command of Mr. Arafat. The PA remains responsible for the negotiations
with the Stateof Israel,but its ultimate authority is thePLO.
120. On 20 January 1996, a general election was held and the Palestinians in the
OPT elected, Mr. Yasser Arafat as the president, and elected their first legislative
body, the Palestinian Legislative Council (the 'PLC').~~Palestinians living in East
Jerusalemparticipated in these elections and elected seven members to the ~ouncil.~~
The PLC consists of 88 representatives. This body is still functioning in the Occupied
Palestinian Territory despite the expiration of its term on 4 May 1999. Under the
prevailing coercive situation in the Occupied Palestinian Territory, further elections
have not yet been possible.
78
Ibid p.,343.
79 This arrangementwas expressed in articleIV of the Interim Agreement of 1995.
80 Zbid.,Article II (3). Chapter 4. ISRAEL'S ATTEMPTS TO CHANGE THE LEGAL STATUS OF
THE OCCUPIED PALESTINIAN TERRITORY, INCLUDING EAST
JERUSALEM
(1) SettlementPolicy and Practice: An Overview
121. With the exception of East Jerusalem, Israel never formally annexed the
Palestinianterritory that it occupied in 1967.This does not mean that Israel preserved
the legal status of the Occupied PalestinianTerritory. Successive Israeli Governments
have been pursuing since 1968 the illegal policy of colonizing the Occupied
Palestinian Territory, including East Jerusalem, through the transfer of parts of
Israel's own civilian population to the territ~ry.~'Carryingthis out has entailed a host
of physical, legal and administrativechanges within the territory, which have resulted
in theseizureof over 41.9 per cents2of this territoryby Israel.
(a) Phases of settlementactivitiesS3
122. It is possible to distinguishthreephases of settlementactivities.
(0 TheFirst Phase: theAllon SettlementPlan
123. First conceived in 1967,the Allon Plan, named after then Defense Minister,
Mr. Yigal Allon, was submitted to several Israeli cabinets from 1968 to 1970.
81 Question of the Violation of Human Rights in the Occupied Arab, Including Palestine,
Report of the Human Rights Inquiry Commission established pursuant to Commission Resolution S-51
of 19October 2000.18
82 B'Tselem 2003 Report, p. 116, Annex 13 in Annex Volume 2 accompanying this Written
Statement.
83 This is adapted from Benvenisti, Meron, The WestBank Data Project: A Suwey of Israel's
Policies, American Enterprise Institute for Public Policy Research, Washington D.C. 1984.Although it was never officially approved,84it served until 1977as a guideline for the
establishment of Israeli settlements in the West Bank. The plan's guiding
assumptionswerethat Israelmust have defensibleborders which mustbe based on the
Jordan River and the Rift Valley and the Judean desert. Securityborders must also be
political borders. Only if Israeli settlements existed along its length would the border
be political. Defensible borders, Mr Allon argued, therefore require a chain of Jewish
settlements which themselves must be under Israeli sovereignty, but without the
annexation of a large Palestinianpopulation. The Allon Plan served as a basis for the
Alignment (Labor coalition) platforms of 1974, 1977, 1981, 1984 and 1988. (See
Annex Volume 1, Map 6, Israeli Settlement Plans in the Occupied Palestinian
Territory)
(ii) Thesecond Phase: 'GushEmunim 'Settlements
124. Gush Emunim (the Block of the Faithful), a right-wing Israeli movement
based on religious ideology, was founded in February 1974 with the objective of
settling inal1parts of the 'landof Israel'. The adoptionof their settlement strategyby
the Likud Party, the right wing alliance that opposed the Labor party and which won
the 1977 elections marked a historic departure from the Labor policy of territorial
compromise. The Gush Emunim settlement strategy was articulated by Mattitiahu
Drobles in what is known as the Drobles Plan. It was based on the following
principles:
84 Gazit, Shlomo, The Carrot and the Stick, IsraelS PoIicy in Judea and Samaria, 1967-68,
B'nai B'rith Books, Washington D.C. 1995.p. 156-7. Settlements should not be isolated. 'Near each existing settlement other
settlementsshouldbe built, so that blocs would be formed.'
A barrier of settlements should be built to 'give asense of security to the rift
valley settlers - our first defensive wall in the -aand prevent a situation,
whereby they would find themselves pressed from East and West by hostile
populations.'
Settlements should fragment the territorial continuity of the Palestinians. To
achieve this, settlements must be built between and around Palestinian
population centres 'with the objective of reducing to the minimum the
possibility for the developmentof anotherArab state inhese regions. It would
be difficult for the minority population to form a territorial continuity and
politicalunity when itis fragmentedby Jewish settlements.'
125. However,because of the apparent shortageof ideologicallymotivated settlers
prepared to leave the metropolitan areas and live in small, remote and isolated
settlements, the policy of settling Israeli Jews in the central mountain region of the
West Bank was not a success.
(ii Ti)e Third Phase: Suburbia
126. During the third phase, a new strategy was developed which emphasized
demographic objectives, in addition to security and ideological ones. The Likud
government (1977-84) sought to attract average Israelis interested in improving their
quality of life. It was hoped that these suburban settlers, in order to protect their
economic investment in a higher quality of life, would create a strong lobby that
would prevent any political solutionbased on territorial compromise. The settlementsin the West Bank were being turned into suburbs with easy and quick access to main
metropolitanareas in Israel.
127. With the adoption of this strategy, settlement figures began to show a
substantial increase. In 1984 there was a 60.5% growth rate bringing the settler
population fiom 27,000 in 1983to 44,146 in 1984.By 1993,the date of the signing of
the Declaration of Principles betweenIsrael and the PLO, there were 120,000Israeli
settlers in the West Bank (excluding Jerusalem) living in 150 settlements, and
160,000in East Jerusalem living in 9 settlements. At present there are some 395,000
Israeli settlers living in the West Bank, of which 177,000 live in East ~erusalem.~~
(SeeVolume 1,Pictures24 -28)
(b) Methods of appropriatinn landfor Israeli settlements
(i) Declaration of land as State land
128. When the occupation began, the land owned by Jews before 1948 and
administered by the Jordanian Custodian of Enemy Property in the West Bank was
estimated at 30,000 dunums out of a total area of 5.50 million dunums (a dunum is
1,000sq.m.). These lands were located mainly in the Jerusalem metropolitanarea and
the Etzion Bloc, situated south of Jerusalem. By 2003, land appropriated, inter alia,
for Israeli settlements in the West Bank (including Jerusalem) constituted2,346,000
dunums i.e. 41.9 percent of the total area of the West Bank. 86 Israel has claimed that
85 Israeli Central Bureauof Statistics, 2002.
86 B'Tselem 2002 Report, Annex 12 in Annex Volume 2 accompanying this Written
Statement. The authors calculate the total areaof the West Bank at 5608000 dunums which includesthe
areas annexed to Jerusalem. The calculation does not include the no man's land and the proportionate
area of theead Sea.no privately owned land was taken by its military authorities for the use of Israeli
settlers- only public land, or the so-called 'state' land. The argument regarding the
illegality of using the natural resources (including land) in occupied territories for the
benefit of the occupier and the transfer of the occupier's population to the occupied
territory, is discussed in Chapter 9, below. The intention here is to respond to the
Israeli claim that the settlements were established on 'state' land and that no private
lands were confiscated Tom Palestinians in the Occupied Palestinian Territory for the
construction of Israeli settlements.
129. According to the World ~ank,~' the total area of state land, namely land
registered in the narne of the Jordanian Government prior to the beginning of the
occupation,is estimated at approximately 13percent of al1West Bank land.
130. Yet, by 1984 Israel was claiming that 40 percentggof such land fell in the
category of state land and was to be used exclusively for Israel's own Jewish
population. What legal ploy did Israel use to boost the proportion of land falling under
this category from 13to 40 percent?
131. A 1993World Bank survey of the land law concludedthat the OttomanLand
Code had no concept of 'state' or 'public'land. The argument went as follows: "At
the advent of the British Mandate al1 land in Palestine was divided into two
categories: waqf(charitab1e or religious trust land administered by the Islamic Shari'a
courts)and mulk(being al1land not waqj). The Land Code consideredal1mulkland as
87 World Bank, Developing the Occupied:An Investment in Peace, Volume 3 Private Sector
Deveiopment, World Bank 1993, p. 113.
88 Land Grab Report: Israel's SettlementPolicyin the West Bank, May 200, op. cit. p.51being owned in the first instance, by the Sultan. Substantial land was given in
perpetuity to residents and taxed accordingly. It was generally residential, urban or
village property and a title deed ('taboo') was given to the owner and was easily
transferred by changing the title in the local register, maintained, in part, for the tax
collecter's convenience. Non-urban, non residential land was divided into three
categories: miri, matrouk and mawat land. Miri land could be consideredavailable for
private, exclusive use if cultivated. If the land remained fallow or not used for three
years or more, it could be categorized as mahlul and made available to another user
(andthus be a continuoussourceof tax revenue). Matrouk land was forpublic use: for
example, for roads, parks or pasture. Its ownership remained with the Sultan but its
use was recognized as availablefor a particular group or village or district which was
charged with its keeping. Mawat land was vacant land not in any person or group's
possession or use. It was considered land that lies at such a distance from a town or
village that a human voice cannot be heard at the nearest inhabited place. The
OttomanLand Codehad no conceptof 'state'or 'public'land." 89
132. The concept of 'stateland' was introduced during the British Mandate in the
1922 order-in-~ouncil.~~The 1922 Order defined public lands as "al1 lands in
Palestine by virtue of Treaty Convention, Agreement or Succession and al1 lands
which are or shall be acquired for the public service or otherwise." The prior
ownershiprights of the Sultanwere transferredto the BritishHigh Commissioner.
133. It is apparent from the definition that public lands were restricted to lands
subject to the control of the government and used in the execution of its purposes.
89 World Bank.op. cit. p. 113They did not include land which was not the subject of a grant to the public, and,
therefore,didnot includemiri, mawat, and matrouk lands.
134. Jordanian civilian rule over the West Bank extended from 1951 to 1967.
Pursuant to its reform legislation, Jordan organized land seulement in the West Bank
and began to survey and formally register al1land. By the time of the 1967war, this
process was still incomplete. Only approximately 40 percent of the land in the West
Bank had beenregistered. As noted above, out of this, 13percent was registered in the
nameof the Jordanian~overnment.~'
135. It was never the practice during this period for the Jordanian Government,
nor is it now the practice of the government in Jordan, to consider al1lands except
land falling in the waqfand mulk categories as state land. It is, therefore, correct to
conclude that in June 1967, out of the area of registered land, state lands comprised
only that 13percent of West Bank land which was already registered in the name of
the JordanianGovernment.
136. Upon its occupation of the Occupied Palestinian Tenitory in 1967 Israel
moved to assert control, but not outright ownership, over land registered in the name
of the Jordanian Government. By virtue of Military Order 59, these lands passed to
the Custodianof GovernmentProperty.
90
91 "1922 Order-in-Council,"cited in Laws of Palestine, London(1933), vol. III. P. 2569.
World Bank, op. cit. p. 113137. In 1968,Israel suspended the process of land registration that had begun in
Palestine under the British mandate in 1928.~' That process was complex but had
afforded considerable due process to claimants, especially in respect of pasture and
cultivableland.
138. In late 1979,the Israeli Office of the Custodianof Absentee Propertybegan a
surveyof West Bankland to determinethe extent of private land (i.e., registeredland)
and governmentland. As alreadymentioned,this survey determinedthat 40 percent of
al1land in the West Bank could be declared to be state land.93The Israeli officia1
arrived at this inflated figure using the fallacious assumption that land in the West
Bank could be deemed to be state land unless it was either registered or under
continuous cultivation for a period of over ten years.94In both cases, the burden of
proof was imposedon the Palestinians claiming to own land to prove that it was not
stateland.95
139. While the Israeli military occupation had suspended the process of land
registration for the Palestinians, Israel in effect pursued it for the Israeli settlers
through these unilateral declarationsby the area commanderthat large areas landwere
state land. This led to the registration of the previously unregistered land (which
constituted the majority of the land) in the name of Israeli Governrnent and quasi-
government agencies for the benefit of Israeli settlers. By 1986 virtually al1this land
was transferred to the Custodian of Government Land and put under the
92
93 Military Order 291(1968).
94 World Bank op. cit. p. 114-5.
Shehadeh, Raja, Occupier's Law, Israel, Institute for Palestine Studies, Washington, D.C
1985, p. 31. Benvenisti, Meron and Shlomo Khayat, The West Bank and Gaza Atlas, The Jerusalem
Post, 1988,p. 61administrative jurisdiction of the Israeli Settlement councils in the Occupied
Palestinian ~erritory.~~
140. Prior to the Israeli occupation of the West Bank, there was only one Land
Register for al1the inhabitants of the area, to which the public had fiee access. After
1967, Israel restricted access to the existing Land Register and created another
register. This new Register, created by virtue of an Israeli Military ~rder,~' was used
exclusively for the purpose of registering land in the name of Israeli owners. This
Register was kept not in the West Bank but in Israel. Eventually, it came to be merged
with the records in the Israel Lands Administration Authority in Israel, where Israeli
state lands areregistered.
141. In this way, the Land Registration Department of the West Bank which until
1967 served as the only register for al1 West Bank land, came to be used as the
register only for land left for the use of Palestinians. The Israel Land Administration
Authority, on the other hand, became the register of the land controlled by the Israeli
Govemment and reserved for the use of Israeli settlers. In this marner, the seime of
some 41.9 percent of Palestinian land by Israel was achieved. As to the remaining
land, it continued to be in Palestinian hands but was subject at any moment to seizure
by the Israeli forces,a processthat is on going to this day.
95 Military Order 364 (1969)
96 World Bank, op. cit.p.115.
97
Military Order 569, Order Regarding Registrationof Transactions in Special Lands, 1974.
59 (ii) Othermethods of land seizure
142. In their quest to take possession of land in the occupied territories, the Israeli
authoritieshave, according to Meron ~envenisti,~~"been using every legal and quasi-
legal means in the book and are inventing new ones to attain their objectives," These
means have included: acquisition of land owned by Palestinians who happened to be
outside the West Bank when the occupation began (absentee land is estimated at
430,000 dun~ms~~),expropriation for public purposes (which accounted for the
acquisition of 150,000 dunums seized or designated for seizure by 19881°0),
requisitioning for military purposes (which accounted for the acquisition of 50,000
dunums of land by 19881°1),and declaration of land as closed for military purposes
which accounted for the acquisition of one million dunums of land by 1988.
However, none of these means has brought more land under Israeli control than the
method described above of declaring unregistered land as state land and placing it
under Israeli control for the exclusiveuse of Israeli settlers.
143. Despite the territorial aspects of the Oslo Accords, the Declaration of
Principles signed between Israel and the PL0 in 1993, and the Interim Agreement
signedin 1995,the entry into force of these Accords did not enable the Palestiniansto
alter the illegalpolicies and practices by which Israel had been acquiring the majority
of West Bank land. When, in accordance with the Interim Agreement, Israel
transferred jurisdiction to the Palestinians over land registration, Israel was only
transferring control over land registered in the West Bank Land Register, not land
98 West Bank Data Project, op. cit. p. 30
99 West Bank Data Project, op. cit. p.30.
1O0
101 West Bank and Gaza Atlas. op. cit,p. 62.
West Bank and Gaza Atlas, op. cit, p. 62.registeredin the Israeli Register. Thus, the majority of the land controlled directly and
exclusively by Israel for the use of Israeli settlers remained out of the purview of
Palestinian control. The attempt of Palestinian negotiators to alter this by expanding
the definition of land registration in Article22 of Annex III dealing with the transfer
ofthis spherewas in vain.
(iii)Land useplanning as a methodforrestrictingPalestinian
use of the land
144. Land registrationwas not the only process by which Palestinian land came to
be designatedfor the use of Israeli settlers. Townplanning wasjust as important,both
in enforcing the acquisition of Palestinian land for the Israeli settlers and in
establishing separate structuresfor the settlements.
145. Palestinian law in the West Bank defines four types of development plans:
regional plans, outline plans, detailed plans and parcellation schemes. Two regional
plans were prepared during the time of the British Mandate. The first was the Samaria
Regional Plan (referred to as 'S15') which covers the northern part of the West Bank
and the Jerusalem Regional Plan (referred to as 'RJ5')which covers most of the West
Bank. The purpose of regional plans was to provide a context for preparing outline
plans for villages.
146. The Israeli Higher Planning Authority in the West Bank claimed to have
discovered these old regional plans in 1980(in the case of the RJ5) and 1985 (in the
case of s15).'02Amendments were then made to these plans, whereby the locations of
102
From Occupation to Interim Accordp.83
61Israeli settlements were identified and large areas were reserved for their future
development. ThePalestinian population had increased at least four-fold since these
plans were firstprepared, yet no modificationor amendmenttook this into account.lo3
In their amended form, the plans served a double purpose. They were used to restrict
Palestinian development,and also to allow maximum room for the establishmentand
developmentof Israeli settlements.lo4
147. One of the amendments to these regional plans was in the form of the
regional Partial Outline Plan for roads No. 50.This plan is based on two earlierplans
prepared in Israel:Road Plan TIMIAI3and the 1983-1986Plan prepared by the World
Zionist Organization,which sought to integrate Israeli and West Bank road networks,
connect settlementsto Israel andby-pass Palestiniancentresof population.105
148. In 1967,the Palestinian'smain transport artery in the West Bank ran north to
south. However,beginning in the early 1970's,Israel began to introduce an east-west
system of 'by-pass' roads, the purpose of which has been defined by the Israeli
Ministryof Defenseas being to:
"enable [Israelis]to travel in the Occupied Territories without passing
throughPalestinianpopulation centres;
permit Israelisto travel acrossthe GreenLine by the shortestroute;
maintain 'an interna1fabric of life' within the Israeli settlement blocs;
and
ensurethat Palestiniantraffic did not passthroughthe settlement~.'"~~
103
104 From Occupation to Interim Accords, op. cit, p.83
From Occupation to Interim Accords, p. 83; West Bank and Gaza Atlas, p. 55-56; B'Tselem
1052 Report, p. 89, Annex 12in Annex Volume 2 accompanying this Written Statement.
From Occupation to Interim Accords, op. cit. p.83149. The initial east-west road roads built in the early 1970's by Israel, as the
Occupying Power, linked the Jordan Valley settlements with coastal areas in the
territory of the state of 1srael.lo7The introduction of the Road Plan No. 50 in 1983-84
introduced a comprehensiveeast-west system, the goal of which was to "integrate the
Israeli and West Bank systems and to promote Jewish settlement in al1parts of the
West ~ank.""~ Creating accessibilityto settlement areas would also serve to increase
demand in these areas.lo9
150. When Road Plan No. 50 was placed on deposit in 1984, 1600 objections
were submitted against it by Palestinians who felt aggrieved because of the extensive
damage it was going to cause to their lands.ll0 The special committee, composed
entirely of Israeli officers,which considered these objections decided in its session on
12March 1991to reject thern."'
151. As with settlement expansion, throughout the Oslo process by-pass road
constructioncontinuedunabated. Between 1994and 1997, 159.2 km of by-pass roads
were constructed; and in 1999 Israeli planning authorities approved 14 new by-pass
roads, entailing the confiscationof some 10, 219 dunums (2,532 acres) of Palestinian
106 State Comptroller, Annual Report 48 (in Hebrew) (Jerusalem; 1998),pp. 1032-1033.as cited
inB'Tselem (2002) Land Grab: Israel's Settlement Policyin the West Bank, p. 50
107 Israeli Proposed Road Plan for the West Bank, A question for the International Court of
Justice, as annexed in "Letter Dated 5 February 1985 from the Chairman of the Committee on the
Exercise of the Inalienable Rights of the Palestinian People addressed to the Secretary-General.
Al401119; S/16943,7 February 7, 1985.
108 Benvenisti, Meron, the West Bank and Gaza Atlas, the West Bank Data Base Project, 1988,
p. 35
109 Benvenisti, Meron, the West Bank and Gaza Atlas, the West Bank Data Base Project, 1988,
p. 35
110
Shehadeh, Raja, "From Occupation to Interim Accords: Israel and the Palestin,Kluwer
111ernational, 1997,p. 83
Shehadeh, Raja, "From Occupation to Interim Accords: Israel and the Palestin,Kluwer
International, 1997,p. 83land.'I2 As of2000, Israelhad requisitioned approximately 160,000dunums, in order
to build its by-pass roadnetwork of some400 kilo me ter^."^
152. For over three years Palestinian access to these roads, constructed on
Palestinian land, has been restricted. Since the start of the second intifada in
September 2000, some 750 road blocks and barriers have been placed, preventing
Palestinians fiom using the old roads,'I4while their access to the new roads created in
accordingwith Road Plan No. 50continuesto be restricted.lI5
153. Likewise, the borders of the Palestinian population centres, both towns and
villages, were circumscribed by the statutory zoning plans completedby Israel in the
Occupied Palestinian Territory before the Palestinian Authority took over. This was
because the areas overwhich the PalestinianAuthority had territorialjurisdiction were
determined by the Interim Agreement and could only be increased with Israel's
agreement.
112 Question of the Violation of Human Rights, supranote 87.
113 Question of the Violation of Human Rights in the Occupied Arab , including Palestine,
Report of theHuman Rights Inquiry Commission established pursuant to Commission Resolution S-51
11419October 2000, p. 18.
"West Bank Barrier: Humanitarian Access and the Jenisalem Wall, United Nations Officer
for the Coordination of HumanitarianAffairs, 3"'December 2003, 5;See www.reliefweb.int-hic-opt
115 Despite the ostensibly inclusivewording of Article 27 of Annex III of the Interim Agreement
of 1995 the Palestinian Authority had no control over most of the road system in the West Bank
because it fell in what the Agreement designated as area C which remained under the exclusive
territorial jurisdiction of Israel. Article 27(1), Annex III States, "Powers and responsibilities in the
sphere of Planning and Zoning in the West Bank and the Gaza Strip shall be transferred from the
military govemment and its Civil Administration to the Palestinian side. This includes initiating,
preparing, amending and abrogating Planning Schemes, and other legislation pertaining to issues
regulated by Planning Schemes (hereinafter: 'Planning Schemes') issuing building permits and
supewising and monitoring building activities.'154. Prior to the signing of the Declaration of Principles in September 1993,
outline plans for some 400 Palestinian towns and villages had already been
prepared,'16mainly by the Israeli planning authority in the West Bank. Most of these
consisted of plans crudely drawn by felt-tip markers on aerial photographs.'17The
most outstanding feature of these crudely prepared plans was the plan boundary.
Rather than define the area for which planning policies are to be prepared, the
boundary identified the zone within which al1Palestinian urban development was to
be confined. 'l8
155.
One report described the corresponding process for the Israeli settlements in
the OccupiedPalestinianTerritory as follows:
"Meanwhile, outline plans for the settlements were made by the same
planning authority, followed by detailed plans which took fully into
consideration present and future needs for the development of the
Jewish areas. In this way, the future spatial development of Palestinian
areas was circumscribed and restricted, Arab settlement blocs were
prevented and Jewish settlement blocs were established providing the
maximum possible space for their future expansion. Through the
implementation of Road Plan number 50, these were connectedto each
other and to Israeli centers while by-passing Palestinian towns and
villages."'l9
156. Al1these schemes were given statutory effect and became, in fact, part of the
law of the land prior to the signing of the Oslo Accords. It was this highly
discriminatory and segregated town planning reality under the cloak of law, which
influencedthe content of the Accords.
116 B'Tselem 2002 Report, p. 87, Annex 12 in Annex Volume 2 accompanying this Written
Statement.
117 From Occupation to Interim Accords, p. 83, 1997.
118 B'Tselem 2002 Report,p. 87, Annex 12 in Annex Volume 2 accompanying this Wntten
Statement.(2) Effectsof the presence of Settlementsand Settlersin the Occupied
PalestinianTerritory
(a) Economicand DevelopmentEffects
157. Settlements,together with the road network, destroy the territorial integrity
of ~a1estine.l~~The settlements and by-pass roads limit the possibility for urban and
economicdevelopment, by the seinire of land and by blocking the physical expansion
of Palestinian villages and towns.lZ1(See Annex Volume 1, Picture 27 - 28) They
also fùrther undermine economic development by restricting Palestinian movement
and impeding the flow of commerce and workers from one Palestinian area to
122
another. For example, along the main north-south transport artery for the
Palestinian population, the Occupying Power is able to control the main transport
artery of the Palestinian population by creating and preventing the expansion of
Palestinian construction and development toward the road and by preventing the
connection of Palestinian comrnunitieslocated on different sides of the road.lZ3
(b) Conditions for Violence
158. The presence of settlements and settlers contribute to increased rates of
violence against Palestinians, including direct violence by settlers. Measures taken to
protect Israeli settlements and settlers involve an increase in military presence in
inhabited areas and have given rise to violent encounters between the Israeli
119 From Occupationto the Intenm Accords, p. 83-84.
120 Question of the Violation of Human Rights in the Occupied Arab Territories,Zncluding
Palestine, report of the human rights inquiry commission established pursuant to Commission
Resolution S-511of 19October, E/CN.4/2001/121, 16March 2002, p. 18,Annex 10 in Annex Volume
121ccompanying this Written Statement.
122 Ibid.
Ibid.
123 B'Tselem 2002 Report, p. 81, Annex 12 in Annex Volume 2 accompanying this Wntten
Statement.occupying forces and the Palestinian population.124 Moreover, many of the acts of
violence that have been carried out by the Israeli occupying forces and settlers that
have resulted in Palestinian deaths or injuries have occurred on heavily defended
roads leading to settlement or in the proximity of settlement~.'~~Furthermore, much
of the Palestinianproperty bulldozedby the occupying forces prior to the construction
of the wall was destroyed for the security of settlers, and not in the interests of
military ~ecurity.'~~
159. Notwithstanding UN Security Council Resolution 904 (1994), which "called
for measures to be taken to guarantee the safety and protection of the Palestinian
civilians throughout the occupied territory" (in the wake of the 1994massacre by an
Israeli settler against Palestinianworshippers in Al-Haram Al-Ibrahimi mosque in Al-
Khalil (Hebron)), Palestinians are still routinely subjected to Israeli settler violence.
The UN SpecialRapporteur of the Commission on Human Rights noted in his March
2002 report, the phenomena of settlerviolence:
"Protected by the Israeli military, and exempt from thejurisdiction of the courts
of the PalestinianAuthority, settlers have cornmittednumerous acts of violence
against the Palestinians and destroyed Palestinian agricultural land and
7,127
pr0pel-Q .
124
125 International Committee ofthe Red CrossAnnual Report, September 2001p. 327.
Question of the Violation of Human Rights in the Occupied Arab Territories , including
Palestine,Report of the Human Rights Inquiry Commission established pursuant to Commission
Resolution S-51of 19October 2000, para 70,p. 18.
126 Question of the Violation of Human Rights in the Occupied Arab Territories , including
Palestine, Report of the Human Rights Inquiry Commission established pursuant to Commission
Resolution S-51of 19October 2000, para 70,p. 18. FinancialIncentivesfor Settlingin the OccupiedPalestinian Territory
(3)
160. Realizing that for its settlement policies to be successful, non-ideological
citizens also had to settle in the Occupied Palestinian ~erritory,'~~successive Israeli
governments have used financial subsidies to attract Israeli citizens to settle in the
Palestinian territory. Accordingly, the Israeli Government classifies Israeli
settlements as "Area of National Priority-A or B", which entitles them to generous
financial benefits. As one report put it:
"The National Priorities Map is an important tool for the
implementationof government policy. The map enables channeling of
substantial funds to areas that the government wishes to develop.
Designation of a locality as having the status of National Priority A
givesthat locality a formidableincentives package.
161. These incentives and benefits include, inter alia, a 7% income tax break,
housing grants, subsidized mortgages, free schooling from the age of three, free
schoolbussing, and grants forbusinesses in industry,agriculture,and to~rism.'~~
162. The Israeli Government ministries that transfer budgetary resources to
settlements include the Israeli Ministries of Transportation, Housing and
Construction, Trade and Industry, Defense, the Settlement Department of the
Agriculture Ministry, and the Israel Lands Authority. Most ministries are
institutionallyand functionally linkedwith the settlemententerprise, as most, if not al1
contribute to their maintenance,expansion, and provision of services.
127 Question of the Violation of Human Rights in the Occupied Arab , including Palestine,
Report of theHuman Rights Inquiry Commission establishedpursuant to Commission Resolutio1S-5
12819October 2000, para 70,p. 18.
"Barak Renews Hi-Priority Statusfor Settlements", Press Release, Peace Now, December
129 2000.
"Barak Renews Hi-Priority Status for Settlements", Press Release, Peace Now, December
30,2000; Seealso B'TselemLand GrabReport, Chapter 5, "Benefits and Financial Incentives."163. Throughout the 199OYst,he Israeli Government favoured the local settlement
authorities in the Occupied Palestinian Territory as compared to local authorities in
Israel. Per Capita transfers in this regard were 150% higher.13' In fact, the total per
capita budget available to the local settlement authorities in the Occupied Palestinian
Territorywas more than forty percent higher than the national average throughoutthe
1990s.'~'
(4) Extendingterritorialjurisdiction
164. Israeli governmentshave sought to avoid the problems that would be caused
by de jure annexation, particularly in the international arena, choosing instead to
pursue policies of de facto annexation. The Israeli Government, the Knesset, and the
IDF Cornmanders, with the blessing of the Israeli High Court of Justice, have altered
Israeli and military legislation with the objective of enabling de facto annexation of
settlements to the territory of the State of 1srae1.I~~Israel began imposing extra-
territorial application of Israeli laws to the settlement areas in the Occupied
Palestinian Territory and to Israeli Jewish citizens irrespective of their location in the
Occupied Palestinian ~errit0ry.l~~The jurisdiction of Israeli courts was extended to
Israeli civilians for offences comrnitted in the Occupied Palestinian Territory. Civil
disputes between Israeli settlers or between a settler and Palestinian also fell under
130 See http://www.ariga.com/peacenowsettlementbudge~epo~.htm
131 Land GrabReport: IsraelSSettlementPolicy in the WestBank,May 2002, p. 84.
132 Ibid, p. 84.
133
134 Ibid, p. 65.
Emergency Regulations (Offenses in the Administere-Jurisdiction and Legal Assistance),
5727-1967. In 1977, the name was amended to read "Judea and Samaria, the Gaza Strip, the Golan
Heights, Sinai and South Sinai, as reported in B'Tselem 2002 Report, p. 65, Annex 12 in Annex
Volume 2 accompanying this Written Statement. Some ofthese principles were confirmed by Annex
IV, Protocol Concerning Legal Matters, of the Interim Agreement between lsrael and thePLO, 1995.Israeli jurisdiction. The effect of these measures was to encourage more Israeli
citizensto move to the settlements, thus contributingto the growth of settlements. 135
(5) Internationalreaction to Israeli settlementspolicy and practice
165. The reaction by the international community to Israel's settlement activities
in the Occupied Palestinian Territory, including East Jerusalem, has been firm and
consistent in its opposition to such unlawful policies and practices. The UN Security
Council, in Resolution 446 (1979) of 22 March 1979determined "that the policy and
practices of Israel in establishing settlements in the Palestinian and other Arab
territories occupied since 1967 have no legal validity" and constitute a serious
obstruction to achieving peace.'36 In that same resolution, the Council called once
more upon Israel to "abide scrupulouslyby the 1949 Fourth Geneva Convention, to
rescindits previous measuresand to desist from taking any actions which would result
in changing the legal status and geographical nature and materially affecting the
demographic composition of the Arab territories occupied since 1967, including
Jerusalem, and, in particular, not to transfer parts of its own civilian population into
the occupiedArab territ~ries."'~~By way of Resolution 446 (1979), the Council also
establisheda Commission to examinethe situationrelating to the settlement~.'~~
166. In yet another Security Council resolution on the matter, the Council, in
Resolution 465 (1980) of 1 March 1980, reiterated its prior determination and
135 Rules of Civil Procedure (Fumishing of Documents for the Administered ), 5730-1969,
Kovetz Takkanot2482, p. 458, as reported in B'Tselem 2002 Report, p. 65, Annex 12 in Annex
Volume 2 accompanyingthis Written Statement. Many of these rules andprocedureswere enshrinedin
Annex IV, ProtocolConceming Legal Matters,of the Interim Agreement between Israel and the
of 1995.
136
137 SRES1446 (1979).
Ibid.condemnations regarding Israel's settlementpolicies and practices and called upon
"al1 States not to provide Israel with any assistance to be used specifically in
connexionwith settlementsin the occupied territ~ries."'~~
167. The UN General Assembly has also consistently expressed its strong
oppositionto and condemnation of Israeli settlement policies and practices, including
by its tenth emergency special session. An annual resolution of the Assembly
addresses specifically "Israeli settlements in the Occupied Palestinian Territory,
including East Jerusalem, and the occupied Syrian Golan", in which the Assembly,
inter alia, reaffirms the applicability of the Fourth Geneva Convention to the
Occupied Palestinian Territory, including East Jerusalem, and to the occupied Syrian
Golan; reaffirms that Israeli settlements are illegal and an obstacle to peace and
economic and social development; and reiterates its demand for the complete
cessationof al1Israeli settlementactivities.140
Annexation and the regimein EastJerusalem
(6)
(a) Legislationand de jure annexation
168. The main developments concerning Jerusalem were noted in Chapter 3, in
the general context of Palestine's history. Here those developments are set in the
context of Israel's consistent policy of annexation of Palestinian territory.At the end
of the 1948 war Israeli military forces held the western sector of Jerusalem and
Jordanian forces held the eastern sector. In January 1950 the Israeli Knesset
(Parliament)declaredJerusalemto be the capital of Israel.
138
See reports of the Commission contained in UN documents Sl13450; Sl13450lAdd.1,
SI134501Corr.1;Sl13679;and Sl14268.
60 S/RES/4465(1980); See also SIRES1452(1979); SIRES1476(1979); SIRES1478(1980).169. Followingthe Israeli military conquest of East Jerusalem,the Knesset passed
on 27 June 1967,Amendment 11 to the Law and Administrative Ordinance of 1948
which applied jurisdiction to al1 areas held by the Israeli military forces. The
amendment provided that "the law, jurisdiction and administration of the State shall
extendto any area of Eretz Israel designated by the government by order."
170. In conjunction with the Law and Administrative Ordinance, mentioned
above, a municipal order was made on 28 June 1967 by virtue of which the Minister
of Interior declared that the boundaries of the Jerusalem Municipality would be
extended to about 70 km2 - an area about ten times that of the Jordanian East
Jerusalem municipality.14'
171. Having thus extended the jurisdiction of Israeli law into an expanded East
Jerusalem, on 29 June 1967 Israel dissolved the Jordanian East Jerusalem
Municipality, thereby asserting sole Israeli administrative control over the occupied
eastern sector of the city. The declared aim of these political and administrative steps,
according to the Israeli authorities at the time, was to render the integration of East
Jerusalem "irreversible and not negotiable."142
172. A number of Israeli institutions were brought into East Jerusalem to
consolidate its integration into Israel. Among these were the Ministry of Justice, the
District Court,the Labor Court of Appeal, and the National SecurityInstitute.
140See for example resolution Al58198of 9 December 2003.
141 Klein, Menachem,Jerusalem: The ContestedCity,(Hurst, 2001).173. Companiesin East Jerusalemwhich were registered in Jordan,but listed their
main office or place of business in East Jerusalem, were asked to re-register as Israeli
companies. Most companies refused, so Israel automatically re-registered them
convertingthem from Jordanian to Israeli ~om~anies.'~~
174. Israel extended its law over Al-Haram Al-Sharif and Holy Places through the
June 1967 Protection of Holy Places ~aw.'~~This law gave the Israeli government
authority over access and freedom of worship in the Holy Places. This control was
reinforced through a 1993 Israeli Supreme Court ruling which stated that Israeli law
was applicable in the Al-Haram Al Sharif area.
175. In this manner, Israel gained administrativecontrol over the business life, the
holy sites, the land surrounding East Jerusalem and the East Jerusalem Municipal
Council.
176. On 30 July 1980 a further step was taken by Israel to consolidate these
changes. The "Basic Law: Jerusalem, Capital of Israel" was adopted by the Knesset.
This law declaredthat " Jerusalem, complete andunited, is the capital of ~srael."'~~
142
Report of the Secretary-General under General Assembly Resolution 2254 (ES-V), UN
Document SI8146andAl6973, point 35.
143 Legal and Administrative Matters (Regulation) Law (Consolidated Version) 5730-1970,
Laws of the State of Israel, Articles 6 to 14.
144 Protection of the Holy PlacesLaw, 5727, 1967.
145 Israel Ministry of Foreign Affairs website: The Law of theLandIBasicLawsIJerusalem. (b) Statusof Palestinian Jerusalemites
177. The Israeli measures relating to Palestinian Jerusalemites are aimed at
restrictingtheir numbers and creating conditions for their enforceddisplacement.
178. During the Jordanian civilian rule over the city fiom 1951 to 1967 Jordan
issued Palestinian residents of Jerusalem with Jordanian passports. Following the
Israeli occupation of East Jerusalem, Israeli law was amended so that these Jordanian
citizens residing in East Jerusalem were not given automatic enemy status. This was
achieved through Article 4 of the Legal and Administrative Matters (Regulations)
Law (Consolidated Version) 5730-1970. As of the date of this law, Palestinian
Jerusalemiteshave been issued with an Israeli identity card that is different fiom the
card issuedto Palestinians in the rest of the OccupiedPalestinianTerritory.
179. In keeping with the status of East Jerusalem as territory to which Israeli law
applies, Palestinian Jerusalemites who remained in the city during the June 1967
occupation were granted Israeli residency permits under the Law of Entry into Israel,
1952andthe Entry to Israel Regulations, 1974.
180. The Israeli Minister of Interior is empowered by Israeli laws and regulations
to revoke the residency rights of Palestinian Jerusalemites. These rules do not apply
to Palestinians fiom the rest of the West Bank or the Gaza Strip. They also do not
apply to Israeli citizens. There are at present 215,400 Palestinian Jerusalem identitycard h01ders.l~~To retain his or her Jerusalem identity card a Palestinian Jerusalemite
must:
- not acquireany other nationality or citi~enshi~'~~
- prove that Jerusalem is their 'centre of life' since 1994- such proof consists of
payingmunicipaltax within Jerusalem
- not live abroad for more than 7 years148
- not many a non-resident spouse - othenvise they must apply for a rarely
grantedfamilyunification order
181. The absence of a residence permit deprives these families of regular health
and social services and prevents their children fiom attending public Israeli schools.
In May 2002 al1 family unification applications were fiozen by the Israeli
government. Prior to September 2000, only 5% of those who applied received
permits. 149
182. By limiting the number of Palestinians in the city in every possible manner,
Israel continues to attempt to integrate East Jerusalem into the 'Jewish State.' Yet
'unified' Jerusalem remainsas divided as ever, with limited interaction between the
inhabitants of the divided city and with the eastern section suffering fiom severe and
readilyapparent systematicdiscrimination in almost every sphere of life.
146 WestBank Barrier: Humanitarian Access and theJerusalem Wall,United Nations Office for
the Coordination of Humanitarian Affairs,December, 2003, p3.
147 Article 11of the Law of Entry into Israel 1952
148
149 Ibid.
Report of the Special Committee to Investigate Israeli Practices Affecting the Human Rights
of the Palestinian People and OtherArabs of the Occupi,A1581311,22ndAugust 2003, pp 40.(7) OtherIllegalMeasuresRelated to Occupied East Jerusalem
183. In its 4gthsession, the UN Commission on Human Rights, while addressing
the question of the violation of human rights in the Occupied Arab territories,
including Palestine,strongly condemned the constructionand expansion of the Israeli
settlements, including the expropriation of land, and the construction of by-pass
roads. 50 The Commissionfùrther condemned:
2. "... the expropriation of Palestinian homes in Jerusalem, ...
the revocation of identity cards of the citizens of East Jerusalem, the
imposition of fabricated and exorbitant taxes with the aim of forcing
the Palestinian citizens of Jerusalem, who cannot afford to pay these
high taxes, out of their homes and out of their city, preparing in this
way thepath for the Judaization of Jerusalem,. ..,151
184. These statementsreflect the two main aspects of Israeli policy in and around
Jerusalem. The first is the energetic and extensive building of roads and settlements
across and around occupied East Jerusalem with the aim of creating an indivisible
infrastructure of roads linking the favoured Israeli settlements encircling the Eastern
part of the city to Israel. The second involves the measures taken to limit natural
Palestinian demographic growthand force Palestiniansout of the city.
(a) Moving the Border around EastJerusalem
185. At present East Jerusalemhas a series of checkpointsand temporary barriers
that have been constructed around it since 1990, preventing access by West Bank
Palestiniansinto the city. Byrestricting the right of accessof Palestiniansto occupied
East Jerusalem the Israeli government is fùrther consolidating the city's integration
150 Commissionon Human Rights Resolution 2003/6 of 15April2003, para. 6
151 Ibid, para. 7with Israel. It has also been moving, in a de facto manner, the former border (the
'GreenLine') from where it fell before the occupationto the external perimeter of the
unified city as determined by the series of checkpoints and temporary barriers Israel
has placed at the outskirts of East Jerusalem and deep into the West Bank.
(b) House Demolitions
186. When the aim is to limit the demographic growth of a population in a certain
area, a limit is placed on the right of the community to develop spatially. This is
normally achieved through zoning plans and regulations. Israel has been using these
practicesagainstthe Palestinian residents of East Jerusalem since the early days of the
occupation. Where it is at al1 possible to obtain a building license the Israeli
authorities have inflated the cost of these license to further deter Palestinian
expansion. Permits for construction in East Jerusalem cost upwards of $25,000,
compared to $6,000 to $10,000 in the West ~ank'~~,making 'legal' building in
Jerusalem very expensivefor most Palestinians.
187. Both the difficulty of obtainingbuilding perrnits and the high cost of the fees
imposed encourage many Palestinians in East Jerusalem to build without a license.
When this happens the Israeli authorities take punitive action. In the lastthree years
alone, 4,000 houses have been demolished across the West Bank, Gaza and East
~erusa1em.l~~ This is part of a systematic policy for acquiringcontrol over Palestinian
populated land and manipulating demographics, thus creating the conditions for
152 UN Habitat: Progress Report of the Executive Director, HSP/GC/19/2/Ad13'hMay,
2003enforced displacement of people. Currently 28,000 Palestinian dwellings in
Jerusalemare underthreat of 'administrativedestructi~n'.'~~
(c) Dual TransportationNetworks
188. The Israeli governmenthas closed down the Palestinianroad network linking
East Jerusalemwith the West Bank through the use of more than 70barriers. Vehicles
bearing a Palestinian license plate - and often also pedestrians, are physically unable
to access these roads. Since 1995, a system of by-pass roads has been constructed
linking the Jewish suburbs established in the West Bank and annexed to Jerusalem
with the western side of the city. With the exception of those Palestinians who are
granted specialpermits touse these by-pass roads, this road network is essentially an
Israeli-onlyroad network
189. Blocking the old road network linking East Jerusalem to the West Bank and
constructing an Israeli-only network has had the effect of fùrther isolating East
Jerusalem from the West Bank, making it physically harder, if not impossible, for
most West BankPalestiniansto have access to East Jerusalem. Because of the central
location of East Jerusalem,the denial of access to the city to Palestinianshas not only
meant denying them the right to have access to the city but has also fùrther divided
the West Bank itself into two parts, the northern and southern, with the movement
between them madevery difficult.
153 Statement by Special Rapporteur on Adequate Housing Regarding House Demolitions in
Occupied Palestinian,6~ November, 2003.
154 Report of the Special Rapporteur onAdequate Housing as a component of the right to an
adequate standardof Living. Report of visit to the occupied Pales,5-10 January 2002: 10 June
2003, E/CN.4/2003/5/Add.12002.190. West Bank Palestinians are prohibited from travelling within the West Bank
or to or fiom Jerusalem on Israeli buses. Israeli buses operating between Jerusalem
and the West Bank only stop in settlements. Contrary to the terms of the Interim
Agreement, the number of Palestinian buses allowed on the road is restricted by the
Israeli authorities.These measures îurther isolate the West Bank fi-omJerusalem
throughpreventingfree movement.
(d) SettlementConstruction
19 1. Consolidating Israeli military control over East Jerusalem through the
creation of facts on the ground has been achieved through settlement activity dating
back to almost immediately after the 1967 war. The purpose of settlement
construction remains consistent with its original conception, namely to alter the
demographics of the city, create infrastructure which blurs the border through
Jerusalem, and further limit Palestinian natural growth or contiguity by building in
strategicPalestinian areas.
192. Extensive land confiscationshave occurred and continue to occur, ostensibly
for 'security reasons'. The land is then used for the purpose of settlement
construction, or for road networks to link settlements. For therpose of construction
of the Wall, 2680 dunums (670 acres) have so far been confiscated in the Jerusalemarea.155Since 1967, out of a total area of 36 km2in East Jerusalem, 24.5 km2have
been expropriatedfor constructionof ~ett1ements.I~~
193. In 2003 alone the Israeli Govemment started preparing the ground for two
new settlements in East Jerusalem: 'Nof Zahar' and 'Kedimet Zion', both planned
initially to comprise 400 housing units. In May - June, the Israeli government also
unveiled plans for the construction of 11,806 housing units in the Occupied
Palestinian Territory. The majority of these planned units are for settlements around
the occupied East Jerusalem area.157 The necessary authorizations were to be
finalized by the end of the year.'58 Further, in August 2003, the Israeli govemment
launched the Eitam plan, which provides fùnding for purchases of apartmenthousing
in National Priority ~reas.'~~ Twice the amount of fùnding is available for housing
purchased in the occupied East Jerusalem area as for housing in other areas eligible
under the program.
194. The total number of settlements in and around East Jerusalem now stands at
over 27, not including the 'illegal outposts'. As of December 2002,the total number
of settlers in East Jerusalem came to over 177,000.'~~
-- -
155
WestBank Barrier: HumanitarianAccess and theJerusalem Wall,United Nations Office for
the Coordination of HumanitarianAffairs, 3'*December, 2003, p3.
156 Palestinian Academic Society for the Study of International Affairs, 2004 Diary, p312.
157 Ibid.
158 Report of the Committee on the Inalienable Rights of the Palestinian People, A158135,9'h
October, 2003, pp 21; Report on Israeli Settlement within the Occupied ,July - August 2003, vo1.13,
no.4, p. 8
159 Elazar Levin, "A four month window of opportunity," Globes Real Estate Supplement,
August 17,2003.
160 Ibid.
161
Jerusalem Central Bureau of Statistics, 2002.(8) Conclusions
195. In sum, for more than three decades, Israel has been engaged in the
colonization and attempted annexation of the territory under its occupation since
1967. Israel has done so through the illegal acquisition of territory and the illegal
transfer of parts of its civilian population, the institutionalization of a separate
structure of life and dual system of law and other measures intended to change the
demographic composition of the Occupied Palestinian Territory, including in
particular in East Jerusalem.
196. The Wall that is now being built by Israel in the Occupied Palestinian
Territory is the culmination of these Israeli policies and practices, leading to the de
facto annexation of large areas of territory, especially areas in which there is a heavy
concentrationof settlements. The Wall cannot be understood except in the context of
such longstanding, unlawful Israeli policies and practices. It is an attempt to usurp
maximum areas of land while containing the Palestinian 'demographic factor' within
the Wall, precluding any real prospect for the realization of a viable and independent
Palestinian State. Chapter5. THE POLICIES AND PRACTICES OF ISRAEL, THE
OCCUPYING POWER, AND THE SECURITY SITUATION IN THE
OCCUPIED PALESTINIANTERRITORY
(1) Introduction
197. In addition to the seime of Palestinian land and the transfer of its nationals
to the Occupied Palestinian Territory, including East Jerusalem, as explained in the
preceding Chapter, Israel, the Occupying Power, has also, from the outset of its
occupation, carried out systematicolicies and practices violating the human rights of
the Palestinian civilian population and violating fundamentalnoms of international
humanitarian law and internationalhuman rights law. For almost three decades, such
policies and practiceshad been imposed on the Palestinianpopulation in the Occupied
Palestinian Territory "without any real or perceived security threat to or retaliation
against Israel. However, the continuationand intensificationofhese actions and their
cumulative effects ultimately generated, by themid-1990s, a cycle of violence that
characterizesthe situationprevailing today. As stated by theN High Commissioner
for Human Rights,Mary Robinson, in her report of 29 November 2000, following her
visit to the Occupied Palestinian Territory: "An inescapable conclusion is thatch
of the present situation has to do with the daily reality of life under occupation,
including what the Palestinians see as the numerous daily humiliations imposed upon
them."162
162
Report of the United Nations High Commissionerfor Human Rights and Follow-Up to the
World Conference onuman Rights, UN Doc. E/CN.4/2001/114 (29 November 2000), para. 23;
reprinted as Annex 9 below.198. Israelipolicies and practices have created the conditions underlying the
current instability, turmoil and "security issues", including the suicide bombings, in
response to which Israel claims it must build the Wall in the Occupied Palestinian
Territoryto protect its citizens. Moreover, Israeli actions, including the destructionof
the Palestinian securityapparatus, have seriouslyundermined the effectiveness of any
Palestinian efforts in the securityrena. A brief examination of Israel's policies and
practices is necessary for a more thorough understanding of the current situation on
the ground, including as it relates in particular to the matter of the Wall that Israel is
building in the OccupiedPalestinianTerritory, includingEast Jerusalem.
(2) Israeli Policies andPractices
199. Since the start of its occupation of the West Bank, including East Jerusalem,
and the Gaza Strip in 1967,Israel has utilized military orders to regulate al1facets of
Palestinian life and has also done so by invoking the Defence (Emergency)
Regulations of 1945, despite the fact that they were revoked by Britain as of 14May
1948.'~~Since then, Israel has used the regulations to justiQ, inter alia, the use of
extrajudicial punishments, such as deportations,home demolitions and administrative
detentions, in violation of the human rights of the Palestinian civilian population
under occupation.
200. The United Nations General Assembly and Security Council have
consistently addressed the issue of the broad human rights abuses and violations
committed by Israel in the Occupied Palestinian Territory, repeatedly condemningIsrael's policies and practices in this regard and calling upon it to cease its violations
and to comply with the provisions of the Fourth Geneva ~0nvention.l~~ Also, in
1968, the General Assembly established the Special Committee to Investigate Israeli
Practices Aflecting the Human Rights of the Population of the Occupied
~erritories,'~~which, despite Israel's refusal to cooperate, has submitted periodic
reports on the matter to each Assembly ~essi0n.l~~ In response to the continuing
gravity of the situation, in 1993, the UN Commission on Human Rights decided to
appoint a Special Rapporteur "to investigate Israel's violations of the principles and
bases of internationallaw, international humanitarian law and the Geneva Convention
relative to the Protection of Civilian Persons in Time of War, of 12 August 1949, in
the Palestinian territories occupied by Israel since 1967", who has reported regularly
to the Commission, with the most recent report submitted on 8 September 2003.'~~
201. In defiance, inter alia, of the resolutions of the General Assembly, the UN
Security Council and the Commission on Human Rights calling upon Israel to cease
its violations and to uphold the UN Charter and comply with international law, Israel
163 Raja Shehadeh,Occupiers 'Law: Israel and the WestBank, (IPS, Washington, D.C., 1988)
164 SIRES1237(1967); SRES1271 (1969); SIRES1446(1979); SIRES1452(1979); SRES1465
(1980); SIRES1468(1980); SIRES1469(1980); SRES1471 (1980); SIRES1476(1980); SRES1478
(1980); SIRES1484(1980); SIRES1592(1986); SIRES1605(1987); SRES1607 (1988); SRES1608
(1988); SIRES1636(1989); SIRES1641(1989); SRES1672 (1990); SIRES1673(1990); SRES1681
(1990);SIRES1694(1991); SIRES1726(1992); SIRES1799(1992); SIRES1904(1994); SIRES11 322
(2000); S/RES/1435(2002) The General Assembly began to recall theFourth Geneva Conventionin
this regard with its resolution 2546 (XXIV) of 11 December 1969 and has annuallyreaffimed its
applicabilityto the OPT.This has included,but not limitedto, an annualresolution specificallyon its
applicability. (See resolutionsAl58197of 9December2003;Al58198of 9 December 2003; Al58199of
9 December 2003;Al58121of 3December 2003 andAl581229of 23 December2003)
165 Al2443 (XXIII)of 9 December 1968. In 1989,the name of the Committee was changed by
resolution Al44148 (A) toSpecial Committee to Investigate Israeli PracticesAffecting the Human
166hts of the Palestinian Peopleand OtherArabs of the Occupied Territories.
The first report ofthe Special Committee was submittedon 5 October 1970(Al8089). The
most recent report was submittedon 22August 2003(Al581311)
167 Resolution ElCN.41199312(A+B) of 19 February 1993. The first report by the Special
Rapporteur was submitted on 13 December 1994 (E/CN.4/1995/19). The most recent report by the
SpecialRapporteur(DugardReport (2003))was submittedon8 September2003 (E/CN.4/2004/6).has persisted in canying out its unlawful policies and practices vis-à-vis the
Palestinian people. From the outset of the occupation, Israel imposed various
measuresseverely damagingthe social fabric of Palestinianpopulation. For example,
it prohibited al1forms of civil liberties, banned fi-eedomof expression and assembly,
and censured al1press and media.16' Restrictive constraints were also placed on the
medical sector and the educational system, including closures of schools and
universities for prolonged periods, particularlyduring the years of the first Palestinian
intifadathat began in 1987.
202. The Palestinian economy was also harmed by Israel's imposition of a series
of restrictive laws and measures in the OccupiedPalestinian Temtory that stunted the
development of the economy and seriously debilitated it.'69 Such policies served to
transformthe territory into a captivemarket for Israel and a source of cheap labour.
203. The deportation of Palestinian civilians fiom the Occupied Palestinian
Territory is another unlawful practice that has been carried out by Israel over the
decades. Deportations have typically been effected through extrajudicial
administrative orders taken by Israeli military commanders. Within just the first
decade of the occupation, permanent expulsions by Israel totalled more than 1,522
~a1estinians.l'~ The UN Security Council has adopted several resolutions
condernningthis unlawfulpractice by Israel,beginning with Resolution 468 of 8 May
168 Raja Shehadeh,1988.
169 Origins and Evolution of the Palestine Problem, 1971-1988 (UN, New York, 1990); See
also reports of the Special Cornmittee to Investigate Israeli Practices.
170
B'Tselem (The Israeli Information Centerfor Human Rights in the Occupied Territories),
www.btselem.org/English/Deportation~Statistics.1980.171Most recently, Israel has begun the practice of deporting Palestinians fiom
the West Bankto the Gaza Strip.
204. Israel has also persisted in the practice of mass round-ups and mass and
individual arrests as well as the arbitrary detention and imprisonment of Palestinian
civilians, in the Occupied Palestinian Territory and in facilities located within Israel,
without charge,without access to legal representation, without trial, and often without
contact with their families.17' Currently, more than 6,000 Palestinian civilians,
includingwomen andyouths, are being held in Israeli detention centres or prisons.173
Israel has also subjected Palestinians in custody to abuse and physical ill-treatment,
includingtorture, and to unhygienic and inhumane ~0nditions.l~~
205. Throughoutits occupation of the Palestinian territory, Israel has caused
extensivephysical destructionto Palestinian homes and property, particularly through
its practice of home demolitions. Thousands of Palestinian homes, including refugee
shelters, have been destroyed during the course of Israel's more than thirty-six-year
occupation as a means of collective punishment and also as a severe penalty in
relation to the stringent restrictions imposed by Israel with regard to building permits
for Palestinians. In addition, the occupying forces have destroyed thousands of
dunums of land and extensively abused and exploited the natural resources in the
OccupiedPalestinianTerritory.
171 SIRES1468(1980). See also SRES1469 (1980); SIRES1484(1980); SIRES1607(1988);
SRES1608 (1988); SRES1636 (1989); SIRES1641(1989); SIRES1694(1991); SIRES1726 (1992);
SIRES1799(1992).
172
See Dugard Report(2003), see also reports of the Special Committeeto Investigate Israeli
Practices, including581311 (22 August2003), dossier no. 53 accompanying the Secretary-General's
173mission.
Dugard Report(2003),para. 29.
174 Ibid.,paras. 30-32.206. Israel has also engaged in other forms of collective punishment of the
Palestinian civilian population, including the imposition of severe restrictions on the
freedomof movement of persons and goodswithin the Occupied PalestinianTerritory
and between the territory and the outside world. It has imposed such restrictions
through the establishment of military checkpoints and roadblocks and a complex
systemof requirements involving identity cards, residency permits and travel permits.
Prolongedcurfews, at times lasting for days or weeks, have at times been imposed on
entire Palestinian cities, towns, villages and refugee camps. The result has been the
immobilization of the Palestinian people in their own land and, during curfews,
imprisonment in their homes, prevented from access to their work, schools, medical
care and even to food supply and clean water. The impact on the social, economic
and health conditionsof the Palestinianpeople has been grave.
207. With the outbreak of the first intifada in December 1987,Israel began a new
chapter in the types and magnitude of its oppressive policies and practices in the
Occupied Palestinian Territory. The above-mentioned policies and practices
intensified in addition to a rise in violence against of the civilian population. The
actions of the Israeli occupying forces began toinvolve, inter alia, excessivebeatings
and the physical harassment of the Palestinian population, as embodied in the "iron
fist" policy instituted by Israel to quel1the Palestinian resistance.17' Moreover, the
occupying forces increased their use of tear gas in confined areas and the use of
rubber-coated as well as live ammunition against the unarmed civilian population,
killing and woundingthousandsof Palestiniandemonstrators.208. In reaction to the precipitous deterioration of the situation in the Occupied
Palestinian Territory, the UN Security Council adopted Resolution 605 (1987) on 22
December 1987. In that resolution, the Council strongly deplored "those polices and
practices of Israel, the occupying Power, which violate the human rights of the
Palestinian people in the occupied territories, and in particular the opening of fire by
the Israeli army, resulting in the killing and wounding of defenceless Palestinian
civilian~."'~~ The Council also requested the Secretary-General to submit a report
"containing his recomrnendations on ways and means for ensuring the safety and
97177
protection of Palestinian civilians under Israeli occupation . Thereafter, the issue
of the provision of protection for the Palestinian civilian population in the Occupied
Palestinian Territory became prominent on the agenda of various UN organs.
Resolution 605 (1987) was shortly followed by two other Council resolutions on the
matter, including Resolutions 607 (1988) of 5 January 1988 and 608 (1988) of 14
January 1988.
209. In the years after theoutbreak of the first Palestinian intifada, the Palestinian
civilianpopulation suffered extensiveloss of life, includingmassacres. This included
the killing of more than 20 Palestinian worshippers at Al-Haram Al-Sharif in
Occupied East Jerusalem on 8 October 1990. In response to the increased
perpetration of violence against the civilian population by Israel, the UN Security
Council adopted Resolution 672 (1990) on 12 October, in which it expressed "alarm
at the violence which took place on 8 October at the Al Haram Al Shareef and other
175 Origins and Evolution of the Palestine Problem, 1917-1988 (UN, New York, 1990). See
also reports of the Special Committee to Investigate Israeli Practices.
176 SRES1605 (1987).
177 Ibid; Report of the UN Secretary-General submitted pursuant to resolution 604 (1987) is
contained in document SI19443 of 21January 1988.Holy Places of Jerusalemresulting in over twenty Palestinian deaths and to the injury
of more than one hundred and fi@ people, including Palestinian civilians and
innocent w~rshi~~ers."'~~ Another incident constitutinga massacre was the killing of
Palestinians civilians by an Israeli settler in Al-Haram Al-Ibrahimi Mosque in Al-
Khalil (Hebron) on 25 February 1994. In esolution 904 (1994) of 18March 1994,the
Security Council condemned "the massacre in Hebron and its aftermath which took
the lives of morethan 50 Palestiniancivilians and injured several hundred others" and
called for "measures to be taken to guarantee the safety and protection of the
Palestinianciviliansthroughoutthe occupied territ~ry."'~~Soon thereafter, on 6 April
1994,the first Palestinian suicide bombing was carried out in Afula, killing 8 Israeli
civilians.
210. The situation in the Occupied Palestinian Territory was greatly influenced
and altered by political breakthroughs that occurred with the signing by the
Govemment of Israel and the Palestine Liberation Organisation ('PLO') of the
Declarationof Principleson Interim Self-GovemmentArrangementson 13September
1993. Preceded by letters of mutual recognition, the Declaration of Principles
envisaged a gradua1process for the withdrawal of the Israeli occupying forces from
the Occupied Palestinian Territory. The Interim Agreement concluded by the two
sides in 1994 detailed the mechanisms for the re-deployment of Israeli occupying
forces from Palestinian territory to be carried out in three phases, beginning in
October 1996and ending within 18months of election of the Palestinian Legislative
Council in September 1997.
178
S/RES/672 (1990); UN Secretary-General submitted a report pursuant to resolution 672
(1990) contained in document1919of 31October 1990.
179 S/RES/904(1994)211. The first redeployment took place in 1994 fiom Gaza City and Jericho,
thereby allowing for the deployment for the first time of Palestinian Security Forces
('PSF').
In the absence of established Palestinian governmental and policing
institutionshowever the various branches of the PSF were faced with the challenge of
irnrnediately grouping and fulfilling their responsibilities, which involved a wide
range of tasks, including inter alia the maintenance of public law and order in the
areas that were to be under Palestiniancontrol.
212. Despitethe progress made in the peace process between the two sides and the
establishment of a Palestinian self-governing authority ('Palestinian Authority') in
1994 in addition to the establishment of the PSF, the situation on the ground in the
Occupied Palestinian Territory did not markedly improve. With the lapse of the five-
year transitional period agreed upon in the Declaration of Principles and the
continuation of settlement activities, friction between the two sides began to increase
once again. Israe17sintransigent pursuit of its settlement campaign in the Occupied
Palestinian Territory led to the convening by the UN General Assembly of its Tenth
Emergency Special Session in April 1997 to address in particular Israeli actions in
Occupied East Jerusalem in connectionwith its plans to construct new settlements in
the area.lgO
180 AIES-1OR of 25 April 1997. The UN Secretary-General submitted a report pursuant to
AIES-1012,contained in document AIES-1016-SI19971494(26 June 1997). This ultimately led to the
convening of a Conference of High Contracting Parties tothe Fourth Geneva Convention in July 1999
and in December 2001,which adopted a declarationreaffirming the applicability of the Convention to
the OPT and calling for respect of the Convention andensuring its respect in al1circumstances. The
text of the Declaration of 5 December 2001, dossierno. 67 accompanying the Secretary-General's
submission.213. Despite the mounting tensions and the exacerbation of socioeconomic
conditionsin the Occupied Palestinian Territory,peace processnegotiationscontinued
over the following years in an effort to implement the agreements reached towards
negotiations for a final settlement. Yet, the third and largest phase of redeployment,
inwhich the Israeliforces shouldhave redeployed from al1of the West Bank, with the
exceptionof areasto be discussed during the permanent statusnegotiations, including
Jerusalem,the settlementsand specified military locations in the OccupiedPalestinian
Territory, was never fulfilled. As such, on 28 September 2000, the day the second
Palestinianintifadabegan, Israel still had exclusivecontrol of 61 per cent of the West
Bank (Area C), with overriding security control over an additional 21 per cent (Area
B). The PalestinianAuthority ('PA') had control only over non-contiguous areas of
the territory coveringabout 18per cent of the West Bank (AreaA). (As of June 2002,
Israel had reoccupied al1of Area A and, within one week, had assumed full security
control over the entire West Bank, which remains the situation today, with the
exceptionof Israeliredeploymentfrom somepopulationcentres.)
(3) The CurrentSecuritySituation
214. The second intifada, triggered by the events of 28 September 2000 in
connectionwith the visit by then Likud leader Ariel Sharon toAl-Haram Al-Sharif in
OccupiedEast Jerusalem,elicited a violentresponseby the Israeli occupying forcesto
Palestinian dem~nstrations.'~' Contrary to accusations of orchestration, the intifada
erupted following that event in a culmination of the rising tensions caused by the
181
See Provisional Verbatim ofUN Securiîy Council SiPV.4204of 3 October 2000, SlPV.4202
(Resumption 1) of 4 October 2000 and SiPV.4204 (Resumption2) of 5 October 2000. See also UNpolitical deadlock and the deterioration of socioeconomic conditions resulting fiom
Israeli policies and practices. As noted in the report of the Human Rights Inquiry
Commission, "The insistence of the IDF that the Palestinian demonstrators,
humiliated by years of military occupation which has become part of their culture and
upbringing, have been organized and orchestrated by the Palestinian Authority either
showsan ignoranceof history or cynical disregard for the ovenvhelming weight of the
e~idence."~~~
215. From the outset of this intifada, the Israeli occupying forces used excessive
and indiscriminate force,using al1forms of military weaponry, against the Palestinian
civilian population, resulting in the widespread killing and wounding of civilians and
physical destruction throughout the Occupied Palestinian ~erritory.'~~ The UN
Security Councilresponded irnrnediatelyto the situation by adopting Resolution 1322
(2000) on 7 October, in which the Council deplored "the provocation carried out at
Al-Haram Al-Sharif in Jerusalemon 28 September2000, and the subsequentviolence
there and at other Holy Places, as well as in other areas throughout the territories
occupied by Israel since 1967,resulting in over 80 Palestinian deaths and many other
casualtie~.~~~~~
documentsAl551432-SI20001921 of 29 September2000;Al551437-S/2000/930of 2 October 2000; and
Al551440-SI20001936 of 2 October 2000 (Letters to President of the Security Council)
182
Report of the human rights inquiry commission established pursuant to Commission
resolution S-5/1of 19 October2000, E/CN.4/2001/121(16 March 2001), para. 48, Annex 10in Annex
V183me 2 accompanying this Written Statement.
See the reports E/CN.4/2001/114, and E/CN.4/2001/121, Annexes 9 and 10 in Annex
Volume 2 accompanying this Written Statement.
184 SIRES11322(2000).216. While the occupying forces continued to use excessive force against the
civilianpopulation in the Occupied Palestinian Territory,the period after the outbreak
of the second intifada also witnessed a rise in suicide bombings by Palestinians
against Israeli civilians in Israel. Thefirst Israeli civilians killed by such Palestinian
acts since the start of the intifada were two people who were killed in a car bombing
on 2 November 2000. By that time, 148 Palestinians, including children,had already
been killed by the Israeli occupying forces.lS5 By the end of the year 2000, at least
322 Palestinians had been killed by the occupying forces and 37 Israelis, including
members of the occupyingforces,had been killed by Palestinianattacks.
217. It must be emphasized that, from the outset, the Palestinian leadership has
been unequivocal in its condemnation of such attacks on Israeli civilians. The
leadership has repeatedly condemned, and continues to stand firmly against, the
suicidebombings as morally wrong, unjust acts that must cease. A distinction must be
made, however, between such unlawful acts of violence against Israeli civilians in
Israel and acts of Palestinian resistance to the Israeli occupation and to military
attacks by the occupying forces, as a matter of international law and irrespective of
the position taken by the Palestinian leadership calling for a cessation of al1acts of
violence.
218. In the months and years following the onset of the second intifada, Israel
intensifiedand escalated its repressive and unlawful policies and practices against the
Palestinian civilian population in the Occupied Palestinian Territory on a scope and
185
See letters of the Permanent Observer of Palestine to the United Nations to the President of
the UN Security Council and the UN Secretary-General (beginning with A/55/432 of 29 Septemberscaleunprecedented since the beginning of its military occupation in 1967. Using al1
means of heavy weaponry, including tanks, helicopter, gunships, warplanes and
bulldozers, the Israeli occupying forces have engaged in the use of excessive and
indiscriminate force and launched countless military attacks, endangering the safety
and well-being of the Palestinian civilian population. This has included violent raids
and incursions into Palestinian population centres, aerial bombardments and missile
attacks targeting Palestinian buildings and vehicles, typically located in densely
populated civilian areas, as well as sniper attacks. The Israeli occupying forces have
also routinely used Palestinian civilians as human shields during military attacks. As
a result of such practices, the occupying Power has, since 28 September 2000 and as
of 21 January 2004, killed a total of 2,708 Palestinian civilians, including men,
women and children, and has wounded more than 40,000 other people, thousands of
whom now suffer permanent disabilities.lS6From the start of the intifada and up until
1 January 2004, more than 800 Israelis, including both civilians and members of the
occupyingforces,have been killed.
219. Among the Palestinians killed by the Israeli occupying forces, many have
been killed by extrajudicialexecution (assassination),a policy publicly acknowledged
to be pursued by the Government of Israel. Israeli assassinations of "militants" have
often been carried out during periods of relative calm or even of some advancementin
the peace process, typically reigniting the cycle of violence and undermining any
peace efforts. In one of many examples, for a month after the declaration of a
2000, AIES-10139-S/2000/1015 of 24 October 2003 to AIES-101255-S/2003/1206of 26 December
1863)
Ibid. This figure represents the number of Palestinians directly killed by the occupying
forces. It does not include those Palestinians who have died as a result of other Israeli practices in theunilateral cease-fireby the Palestinian side on 16December 2001, not a singleIsraeli
civilianwas injured or killed by a Palestinian from the Occupied PalestinianTerritory.
However, on 14January 2002, Israel assassinated a leader of Al-Aqsa Brigades,Raed
Kami, in Tulkarem. The group retaliated by carrying out an attack on 17 January
2002 and thus the violence flared up again. According to the Special Rapporteur of
the UN Commission on Human Rights on the situation of human rights in the
Palestinian territories occupied by Israel since 1967, from October 2000 to April
2003, the occupying forces "killed more than 230 Palestinians, including 80 children,
women and innocent bystanders, in assassination actions" between October 2000 and
April 2003 alone.lS7
220. At the sametime, Israel has inflictedvast physical damageand destructionin
the Occupied Palestinian Territory since September 2000.'~~ Thousands of
Palestinian homes, properties and vehicles have been destroyed. The Palestinian
infrastructure has been severely damaged due to the destruction of roads and
electricity, water and sewage networks by the occupying forces. Thousands of
dunums of agricultural land have been razed and hundreds of thousands of productive
trees have been uprooted.
Occupied Palestinian Territory, such as those who have died at checkpoints after being prevented from
accessing medical care.
187 Dugard Report (2003),para. 24.
188 Ibid. See also Commission on Human Rights, Report of the High Commissioner,
E/CN.4/2001/114, Annex 9 in Annex Volume 2 accompanying this Wntten Statement;Commission on
Human Rights, Report of the Human Rights Inquiry Commission, E/CN.4/2001/121, Annex 10 in
Annex Volume 2; Al581311;Report of the Commissioner-General of UNRWA (A/58/13).221. Also in collective punishment of the Palestinian population, Israel has
dramaticallyintensifiedand entrenched its restrictions on the freedom of movement of
persons and goods, including medical and humanitarian, in the Occupied Palestinian
Territory. Movement is restricted between and within Palestinian cities and villages
and to and from the territory by means of hundreds of checkpoints and roadblocks,
aroundeverytown and major roadjunction, dividingthe temtory internally.189 These
restrictions, along with the imposition of broad military closures and prolonged
curfews, have disrupted every aspect of Palestinian daily life and have brought the
damaged Palestinian economy to a near standstill, with rising and inordinate rates of
unemploymentand widespread poverty among the population. World Bank estimates
that at least60 percent of the Palestinian population is living below the poverty line
and unemployment stands at approximately 53 percent of the workfor~e.'~~ The
cumulative socioeconomic consequences have been devastating, amounting to a dire
humanitarian crisis. As stated in the Mission Report of the UN Secretary-General's
Persona1HumanitarianEnvoy, CatherineBertini:
"Palestinians are subject to a variety of closures, curfews, roadblocks
and restrictions that have caused a near-collapse of the Palestinian
economy, rising unemployment, increased poverty, reduced
commercial activities, limited access to essential services (such as
water, medical care, education, emergency services) and rising
dependencyon humanitarian assistance. The restrictions affect almost
al1 activities, rendering most Palestinians unable to carry out any
semblance of normal life and subject to daily hardships, deprivations
and affronts to human dignity."l9l
189
Dugard Report (2003), para. 17; See also Commission on Human Rights, Report of the
Human Rights Inquiry Commission, E/CN.4/2001/121, Annex 10 in Annex Volume 2 and Mission
Report by Ms. Catherine Bertini,Persona1 Humanitarian Envoy of the Secretary-General, of 19
August 2002 (hereinafter,rtini Report), Annex 14 in Annex Volume 2 accompanying this Written
Statement.
190 Two Years of Intifada, Closuresand the Palestinian Economic Crisis, The World Bank, 5
March 2003.
191 Bertini Report, para. 4, Annex 14in Annex Volume 2 accompanying this Written Statement.222. Someof the above-mentionedmeasures and actions carried out by the Israeli
occupying forces in the Occupied Palestinian Territory constitute grave breaches of
the Fourth Geneva Convention within the meaning of Article 147 of the Convention,
inter alia,, but not limited to, wilful killings, wilîully causing great suffering or
serious injury to body or health, unlawful confinement and the extensive destruction
and appropriationof property, as detailed in Chapter 9. For example, some of the acts
committed by the Israeli occupying forces during the assault on the Jenin refugee
camp and its inhabitants in April2002 canbe considered as such.19*Another example
is the extrajudicialkilling of Salah Shehada,on 23 July 2002, in his home in a densely
populated area in Gaza by the dropping of a one ton bomb on his home, which
resulted in the killing of a total of 15 civilians, including children, the wounding of
more than 150people and vast physical de~truction.'~~
223. The Israeli military escalation in the Occupied Palestinian Territory since
September 2000 not only targeted the civilian population but targeted the Palestinian
Authority as well. The occupying forces carried out numerous direct attacks and
bombardments against PA facilities and institutions including, inter alia, ministries
and security and intelligence installations. The occupying forces even launched
attacks against the compound of the President of the PA, Yasser Arafat, in Ramallah,
where he has been under siege since December 2001.'~~ The impact on the
Palestinian security apparatus has been severe, as it has been virtually incapacitated
and immobilized, similar to the PA as a whole. Moreover, in January 2003, Israel
ended the security and civil cooperation and coordination that had been established
192 See report of the UN Secretary-General in MES-101186 of 30 July 2002; Human Rights
Watch ReportJenin: ZDFMilitary Operations(May 2002, Volume 14,No. 3 (E).
193 AIES-101185-SI20021827of 23 July 2002
98with the PA, further detrimentally impacting the work of the Palestinian security
services.
224. Numerous efforts have been undertaken at the international level, including
through the United Nations, to address the critical situation in the Occupied
Palestinian Territory. This has included the establishment of the Fact-Finding
Cornmittee, headed by former U.S. Senator George Mitchell, which presented the
"Mitchell ~e~ort",'~~as well as the Security Council's repeated examination of the
situation and its adoption of Resolutions 1402(2002) of 30 March 2002, 1403(2002)
of 4 April 2002, 1405 (2002) of 19 April 2002, and 1435 (2002) of 24 September
2002. Efforts have also been undertaken by other international actors, including
initiatives by the U.S. as well as by other members of the Quartet. Regrettably, none
of these efforts has been successful in ameliorating the situation and bringing a
resumption of the peace process.
(4) Conclusions
225. The current situation in the Occupied Palestinian Territory is one in which
Israeli occupying forces are now present in or around al1 Palestinian population
centres and stringentrestrictions on movement continueto be imposed, in the midst of
which the Palestinian people continue their efforts to overcome the adverse
consequences of the loss of human life and destruction, including that of their
institutions, that has been incurred by Israel. The humanitarian crisis being faced by
the Palestinian people has been fundamentally aggravated by Israel's construction ofthe Wall in the Occupied Palestinian Territory, including East Jerusalem, as the
expropriation of land, the obstruction of movement and the isolation of Palestinian
cities and villages from one another fùrther exacerbate the dire socioeconomic
conditionsand deepen the frustration and despair of the population. As stated by the
UN Secretary-General's Persona1Humanitarian Envoy in her Mission Report, "[ilt
must be recognized that the social and economic misery of the Palestinianpeople is a
serious obstacle to achieving lasting peace and security. Sharply declining living
conditions help destabilize the political environment and increase the sense of
desperationthat is so successfullyexploitedby e~tremists."'~~
226. It is unquestionable that suicide bombings against civilians in Israel must
cease. It is also unquestionablethat Stateshave the right and responsibility,within the
confines of internationallaw, to protect their citizens. However, the notion that Israel
is a peaceful and passive country under attack is baseless. A fundamental change in
Israeli policies and practices, consistent with Israel's obligations under international
law, is an essential prerequisite for any amelioration of the situation on the ground.
Palestine affrms that the way to provide security for the two sides is by the cessation
of the above-mentionedunlawful Israeli policies and practices and the termination of
the occupation and not by the building of walls, even if built on Israeli territory.
Overcoming the current situation, including the security situation, and moving
fonvard towards a peaceful settlement are contingent upon compliance with
international law and adherence to the two-State solution and the realization of the
inalienablerights of the Palestinianpeople.
195
196 Report of the Sharm El-Sheikh Fact Finding Committee (Mitchell Report),30 April2001.
Bertini Report, para.2, Annex 14 in Annex Volume 2 accompanying this Written
Statement. PART C. THE WALL
Chapter 6. The Wall Being Built by Israel in the Occupied Palestinian
Territory,includingin and aroundEast Jerusalem
(1) Introduction
227. The Wall that is being built by Israel is being constructed almost entirely in
the Occupied Palestinian Territory, including in and around East Jerusalem, in
departure from the Armistice Line of 1949 (Green Line). It is a whole regime,
composed of a complex structure as well as practical, administrative and other
measures. It encirclesentire communities in walled enclaves and, if completed, will
wall-in almost al1of the Palestinianpopulation. It has resulted in vast destruction and
has entailed the confiscation of thousands of dunums of Palestinian land and has
already imprisonedthousands of Palestiniansbetween it and the Green Line. There is
a clear correlation between the route of the Wall and the illegal Israeli settlements in
the Occupied Palestinian Territoryand water resources as well. The Wall is having a
devastating socioeconomic impact on the Palestinian people. It clearly aims at the de
facto annexation of large areas of the Occupied Palestinian Territory and makes the
viability of a Palestinian State and the implementation of the two-State solution
almost impossible. The purpose of this Chapter is to outline and depict the existing,
approved and projected route of the Wall, and to explain the regime of the Wall and
accompanyingmeasures and effects and the Wall's social and economic impact on the
Palestinianpeople in the OccupiedPalestinianTerritory.228. For the purposes of this Written Statement, construction of the Wall is
divided into Phases 1,II and III, described below, based on dates of approval by the
Israeli Cabinet. In some cases final decisions may not have been taken but reliable
projections are p0ssib1e.l~~
(2) The Route oftheWall: 'Existing,Decided andProjectedPhases
Phase 1of the Wall
(a)
229. On 14 April 2002, the Israeli Cabinet decided to establish a 'permanent
barrier'in the 'seam area' betweenthe West Bank and Israel on 14 April 2002. To
implement this decision, the "Seam Area Administration", headed by the Director
General of the Ministry of Defense, was established. In early June 2002, the Seam
Area Administration completed plans for Phase 1 of the Wall, to run from the
northwest edge of the West Bank, near thevillage of Salem, to the Israeli settlement
of 'Elqana' in the central West Bank (See Map 3: The Wall in the West Bank, and
Briefing Map). A plan was also devisedto build a Wall in the north and south of East
Jerusalem (See Map 4: The Wall in East Jerusalem). On 23 June 2002, the Israeli
Govemment approved, in its decision 2077, the plan in principle and, on 14 August
2002, the Cabinet approved the final route of Phase1.Construction of Phase 1of the
Wall was mostly completedby the end ofJuly 2003.
197
'Phase 1' corresponds to Israel's S1aof construction and 'PhaseII' corresponds to
Israel's Stages, and4. These are sometimes referred toas Phases or StagesA and B.230. Israel has asserted that 'operational considerations' were the principal factors
affecting the route of Phase 1 of the Wall. These considerations included three
principal components.
Topography:Accordingto Israel:
"The selection of the topographic route of the barrier was derived from
security reasons. The barrier must pass through, to the greatest extent
possible, areas fromwhich the surro&ding temtory can be controlled, in
order to prevent harm to forces operating along the route, and to enable
the forces to operate observation points that overlook both sides of the
fence."lY8
Securiv Area: Accordingto Israel:
"The fear is that the barrier will not prevent every penetration, and that
security forces will not be able to arrive in time to thwart the crossing of
potential attackers. A geographic security area is necessary to enable the
combat forces to chase the terrorists within. ..[the West Bank] before
they are able to cross into Israel and disappear within the population."1yy
Leaving as Many Settlementsas Possible West of theBarrier: According to
Israel,
"The fear is that erection of the barrier will channel the attacks to these
communities, so it was decided to have the fence pass east of these
settlements in order to provide protection for them and for the access
roads that reach them."200
(b) Phase II of the Wall
231. Phase IIwas approvedby the Israeli Cabinet on 1October2003. It comprises
the followingextensions of the Wall.
198 Israeli State Response, Sec. 18-19,in Sa'al Ywani 'Abdal Hadi et al. v.Commander of IDF
Forces in thWest Bank,HCJ 7784102,as reportedinB'Tselem2003 Report, p.32.
199 Ibid.
200 Ibid.232. Initiating the eastern part of the Wall, one section was extended from Salem
east to the Jordan River. Another section was extended south from Al Mutilla to
Tayasir, which is scheduled for completion in March 2004 (See Map 3: The Wall in
the West Bank, and BriefingMap).
233. Further to an Israeli Cabinet decision on 5 September 2003, the constructed
segments of the Wall in and around East Jerusalem (except in the area of 'Ma'ale
Adumim')were extended (SeeMap 4: The Wall in East Jerusalem).
234. The Wall was extended southwards from the settlement of 'Elqana' in the
directionof Jerusalem, and from the settlementof 'Gilo' to SouthMount Hebron (See
Map 4: The Wall in the West Bank, and BriefingMap).
235. Phase II was scheduled for completion in 2005. However, on 18 December
2003, Prime Minister Ariel Sharon announced that "Israel will greatly accelerate the
construction of the security fence" in anticipation of a unilateral Disengagement
Orders were issued for construction along the entire blueprint of the Wall
simultaneously,instead of building it stageafter stage.202
(c) ProiectedPhaseIII of the Wall
236. In March 2003, the Israeli Prime Minister announced plans for the
construction of a Wall running along the Jordan Valley. Although the route has not
yet been officially approved by the Cabinet, an Israeli Government decision to buildthe eastern Wall is reported to have been tal~en.~'~ According to the Dugard Report
(2003, para. Il), it is "widely expected that following completion of the Wall
separating Israel fiom the West Bank on the western side, an eastern side will be
constructed, along the mountain ridge west of the Jordan Valley, which will separate
Palestine fiom the Jordan Valley." This section of the Wall is projected to run along
the Allon Road (Highway 80) fiom Tayasir to Al-Ram and continue southward from
Abu Dis to Um Diraj, linking with the approved phase of the Wall southeast of Al-
Khalil (~ebron)."~ (See Map 3: The Wall in the West Bank, and Briefing Map) A
territorialoutlet for Palestinianpassage to Jordan is projected to run fiom Ramallah to
the border with Jordanvia Jericho.
(d) East Jerusalem
237. As indicated above, the route of the Wall weaves in and around Occupied
East Jerusalem. As described in the report of the UN Secretary-General, submitted
pursuant to General Assembly resolution AIES-10114, "The existing barrier and
planned route around Jerusalem is beyond the Green Line and, in some cases, the
eastern municipal boundary of Jerusalem as annexed by Israel. Completed sections
include two parts totalling 19.5 kilometres that flank Jerusalem, and a 1.5-kilometre
201 Prime Minister Ariel Sharon's Speechat the Herziliya Conference, 18December 2003.
202
203 Amir Rapaport,Ma'ariv,24 December 2003.
Ze'ev Schiff, "Something's afoot along thefence," Ha'aretz, 30 December 2003. Other
reports indicating plans forthe Jordan Valley Wall include, Geoffrey Aronson,"Sharon Govemment's
Separation PlanDefines Palestine's Provisional Borders,"Report on Israeli Settlement in the Occupied
Territories, Vol. 13, No. 4, July-August 2003, p. 4; Ha'aretzce, "US Opposes Israel'sPlan for
Jordan Valley Fence," Ha'aretz, 21 July 2003; Eyal Weizman, "Ariel Sharon and the Geometry of
Occupation, Part3,"15 September 2003,
www.opendemocracy.net/themes/article.isp?id=2c& f,JtnathlnIDoo1k,76hwarting the
204ate,"Al-Ahram WeekIyon-line, Issue No.61,27 March - 2 April2003.
Estimates of the length and route are based on press reports from military sources detailing
both the location and length of the Wall, meetings with Israeliofficiais involved in planning the route,concretewall in the eastern Jerusalem neighbourhoodof Abu Dis. The planned route
includes a sectiondue east of Jerusalem that links up with the existing Abu Dis wall;
levellingof land has started at its southem end." The report further asserts, "A second
section runs through the northern Jerusalem suburb of Al-Ram, which will be cut off
from Jerusalem, and links with the existing northem barrier section at the Qalandia
checkpoint. Athird section will surround five Palestinian communities north-west of
Jerusalem, creating a 2,000-acre enclave with 14,500 people. A gap remains in the
plannedroute due east of Jerusalem near the settlementof Maale ~dumim."'~~
Summarv:TheWall Depictedby Referenceto the Green Line
(e)
238. In this section, Palestine provides specific references to the length and
location of the Wall at the time of writingthis Statement.
To date 186km of the Wall have been completedin the northern and central
(Jerusalem)West Bank.
An additional25 km are currentlyunder construction.
381km of the Wall have alsobeen approvedfor construction.
An additional 196km can be projectedbased onrecomrnendationsby the
Israelimilitary.
According to these figures, the total length of the Wall once completed, based on
currentinformation,will be 788km.
and calculations based on the total length of the approved routes and the total projected length of the
205l. SeeBen Kaspit, Ma 'ar14January 2004.
Report of the Secretary-General prepared pursuant to General Assembly resolution ES-10113,UN
Doc AIES-101248 of 24 November 2003, dossier n. 52 accompanying the Secretary-General's
submission. (i) Sections of PhaIeand IICompleted to Date
239. Six sections of the Wall have been completed to date. (See Maps 12a-12k:
The Wall in the West Bank, Sections a-1)
Location Length of Wall
Salem/Mutilla: 31 km
Jordan RiverfMutilla: 9km
Saledasha (Salfit): 126km
Ramallah/Jerusalem: 9km
Bet Sahur/Bethlehem/Jerusalem(South): 10km
Abu DisIAl 'Eizariya: 1km
Total: 186km
(ii) Sections ofPhasII Currently Under Construction
240. Three sections of the Wall are currently under construction. (See Briefing
M~P)
Location Length of Wall
Abu DisIAl 'Eizariya: 14km
Mutilla/'Mehola'(Jordan River): 6km
Rantis: 5 km
Total: 25 km (iii) Approved Trajectoryof PhaII
241. Six sections of the Wall have been approved for irnrnediateconstruction.The
intemal Jerusalem enclaveshave been approved and announcedaroundthe suburbsof
Jib-BirNabala, Al Ram,Anata, Hizma, Shufat Refugee Camp and around Al Walaja.
(SeeBriefingMap)
Location Length of Wall
Mashd7Ariel'/Ramallah: 132km
MutilldTayasir (JordanValley): 14km
'Gilo'(Beth1ehem)lUmDiraj (A-Khalil): 129km
DoubleWalled Areas:
-Qibya: 25 km
-Bet Ur: 42 km
Intemal JerusalemEnclaves:
-Jib: 17km
-Al Walaja: 5km
Al RadAnata: 17km
Total: 381 km
(iv) Projected Trajectoryof PhaIII
242. There are additional projected sections of the Wall recommended by the
Israeli military. The Jordan Valley/HebronHills trajectory fiom Tayasir to Um Diraj
is approximately196km. (SeeMap BriefingMap) (f) Correlationof the Wall Route to the Green Line
243. Of the total length of al1three phases (788 km), only 6 per cent of the Wall
will be located within 100 meters of the Green Line, and that almost entirely on the
Occupied Palestinian Territory. Of Phase 1 of the Wall constructed to date, only 22
per cent is located within 100 meters of the Green Line, and that almost entirely on
OccupiedPalestinianTerritory.
244. Specifically, of the completed sections of Phase 1 and II built on the
OccupiedPalestinianTerritory:
41 km of the Wall are within 100m of the Green Line.
3 km of the Wall are between 100m and 200 m of the Green Line.
17km of the Wall are between 200 m and 1000m of the Green Line.
124km of the Wall are between 1000and 8000m fi-omthe Green Line.
(3) The Regime of the Wall and Accompanying Measures and Effects
Phvsical Structureand Characteristicsof the Wall
(a)
245. Sectionsof the Wall in Jerusalem,Abu Dis, Qalqiliya, Tulkarem,Nazlat Issa
and Salem are 8 meters high and constructed of concrete (See Photographs 4, 5 and
12). The concrete Wall is lined with watch towers approximately 300 meters apart in
areas such as Qalqiliya and Tulkarem. (See Photograph 3) There are 13watch towers
that surround the city of Qalqiliya alone. At the time of this Written Statement,
approximately 9 km of the Wall, including 2 km in Jerusalem, is constructed of
concrete. However, because of the current Pace of construction of the Wall, these
figuresare increasingevery day.246. The majority of the Wall complex varies in width between 30 and 100
meters. In most cases areas bordering the Wall are considered closed military zones
and access is severely restricted (See Photograph 15). The Wall complex includes a
number of components.The dimensions of the following components are drawn from
a cross-section of the Wall in Qalqiliya, but they are representative of much of the
remainder of the Wall. (See Cross-Section of the Wall Complex graphic and
Photographs 1and 2) In the sequence of the cross-section,the componentsinclude:
A stackof coils of barbed and razor wire, 5 meters deep and 3 meters high.
A trench3 meters deep and 1.5meters wide.
A pavedroad forIsraelipatrols, 6 meters wide.
A sandtracepath to detect footprints,5 meters wide.
An electrified fence, with automatic sensors, 2.5 meters high on a 60 cm high
concretebase.
A dirt area 10meters wide.
Anothertrench 3 meters deep and 1.5meters across.
Another stack of 6 coils of barbed and razor wire, 5 meters deep and 3 meters
high.
On either side of the Wall complexare buffer zones and ditches.
Surveillancecamerasare installedalongthe Wall complex.
The Israeli press has reported that 'remote control' automatic machineguns
are to be installedin the Gilboaarea.'06
206
Felix Frish, "Revelation: The separation wall will shoot at terrorists",bYnet, 22
September 2003.247. In addition to these components,there are 37 gates built along Phase1 of the
Wall. (See Map 13: The Wall and the Closed Zone, and Photographs 13 and 14)
Approximately half of these gates are operating, though they have minimal and
fluctuatingopeningtimes. (See Appendix 2: 'Closed Zone PermitSystem').
248. Overall, the physical Wall complex is integrated into a larger system of
barriers, includingnaturaltopographical features,the road network, fixed checkpoints,
'flying' checkpoints, dirt mounds, cement blocks and gates on secondary roads.
Altogether, this system of closure and enclosure is farther reaching than the linear
features of the Wall itself. (See MapIl: The Wall and West Bank Topography, and
Map 5: TheWall and Closure in the West Bank).
(b) Walled Enclaves
249. The Wall, if the three phases are completed,will wall-in almost the whole of
the Palestinian population in two large Bantustan-like enclaves in addition to East
Jerusalem. Phases 1 and II have actually created and will be creating several
additional small enclaves along the route of the Wall. As such, the Wall creates
several kinds of enclosed areas. Qalqiliya is the clearest example, as a city of 41,000
inhabitantsthat is completely encircled by the Wall andis closed off by a single gate
(See Map 12b:The Wall in the West Bank, Sectionb: QalqiliyaArea). There are also
'double-Walled' areas in which a second wall extends from the principal Wall and
encircles and encloses a certain area. For example, a second Wall is under
construction west of Baqa Sharqiya. Land confiscation orders have also been issued
for a second Wall east of Tulkarem. Land has also been confiscated and levelled forconstruction of a second Wall around Qibya, as well as around Bet Ur (SeeMap 3:
The Wall in the West Bank, and Briefing Map). These are distinct fiom enclaves,
which are walled-in communitiesnot connected to the principal Wall, such as Jib and
Al Walaja (See Map 4: The Wall in East Jerusalem, and Jerusalem inset on Briefing
Map). Enclosed areas will create harsher conditions of isolationbecause Palestinians
will be separatedin everyway fromtheir land and their surroundingcommunities.
(c) PropertyDemolitionand Levelling of Land
250. In June 2002, the Israeli Civil Administration began issuing demolition
orders for Palestinianhouses along and near the route of the Wall,primarilyunder the
pretext of lack of building perrnits.20For construction of Phase 1of the Wall at least
280 demolition orders were issued to the communities of Nazlat 'Issa, Baqa a-
Gharbiya,Baqa a-Sharqiya, Azzun 'Atma,Umm a-Rihan, and Dhaher al-Malah.Most
of the propertyis re~idential.~'~
251. In addition to residential dwellings, approximately 21,002 dunums (5,251
acres) of land have been razed for construction of Phase 1of the Wall. This includes
agricultural infrastructure, cropland, greenhouses, a children's playground in Al
Tayba, a secondaryschool in Ras 'Atiya, shops, and animalshelterse209
207 See Chapter4 forIsraeliplanningpolicy inthe WestBank.
208 B'Tselem2003 Report,p. 24.
209 PalestinianCentralBureauof Statistics,Suwey on the Impact of Separation Wall on the
Localities Whereit Passed Through,2003, August2003,p. 7.
112 Establishmentof a ClosedZone and a Permit ~ystem~'~
(d)
252. On 2 and 7 October 2003, the Govemment of Israel issued four military
orders (No. 378)declaring the area, in the Occupied PalestinianTerritory,between the
Wall and the Green Line a 'Closed Zone', and establishingan onerous permit system
for residentsliving in and workers accessingthis area. The four orders are:
DeclarationConceming Closing an Area No. SI2103(Seam Zone) -
2 October 2003 (with attached map)
GeneralPermit to Enter the SeamZone and to Stay in it - 2 October 2003
RegulationsRegarding Entry and StayPermits to the Seam Zone -
7 October2003
RegulationsRegardingPermit for Permanent Residents in the SeamZone -
7 October 2003
These four military orders were distributed to local village councils on 9 and
10October 2003.~''
253. The military orders require Palestinian residents within the Closed Zone to
obtain bermits to live in their own homes, remain on their land, and to travel.
Palestinians not residing in the Closed Zone but whose land, business, or work is
situated inside the ClosedZone are alsorequired to obtain permits.
210
On the implementation of the permit system in individual villages, seefurther Appendix:
"Closed Zone Permit System," Part A; and generally, Local Aid Coordination Cornmittee,The Impact
of Israel's Separation Barrier on AfSected WestBank Communities, Update No. 3, 30 November 2003
dossier no.8 accompanying the UN Secretary-General's submission.
211 For the full text of the four military orders, see the translatiUN bOffice for the
Coordination of Humanitarian Affairs,www.relieîweb.int/hic-opt.254. Although Palestinians are required to obtain permits to remain on their
property, the permits do not constitute proof of ownership of land. The procedures
detailed in the military orders for acquiring permits are not only complicated,but the
criteria by which a permit is granted or denied is not specified.The burden of proof of
permanent residencyor accessis on the Palestinian owner of property.
255. The militaryorders gant the Heads of the local Israeli District Coordinating
Offices ('DCO') or a 'Comrnittee' established by the Head of the Israeli Civil
Administration in the Occupied Palestinian Territory full authority to determine
Palestinians' abilityand legal right to remain in their homes, on their land or to access
their property, and for whatperiod of time.
256. There is inconsistent,unpredictable and unreliable application of the permit
system throughout the Closed Zone. To date, many Palestinianswho are residents of
villages situated within the Closed Zone have been denied permits. Moreover, the
permits are issued for periods of only one, three or six months, requiring repeated
renewal and enabling Israeli authorities to isolate and contain Palestinian
communities.For the mostpart, permanentresidencypermits in the ClosedZone have
not been issued for periodslongerthan six months,or exceptionallyfor one year.
257. Initially, significant numbers of Palestinians who depend on their land for
their livelihooddid not receivepermits. Others in the samevillagewho are not able to
work the land, such as the elderly and small children, did receive permits. Also,
within single families, some members receivedpermits while others did not. In many
cases,the principal incomeearner did not receivea permit, affectingentire families.258. The Israeli Government has denied Palestinians permanent residency permits
on the grounds of 'security', despite the fact that these Palestinians had been living
and working in their villages for many years. No details were provided regarding the
specïfic security threat posed by an individual whose application has been rejected.
Denial of permits on 'security' groundsis the samejustification that has been used by
Israel to refuse Palestinianspermission to enter the territory of the State of Israel or to
travel abroad. By January 2004, most villagers had received permanent residency
permits for varying periods of time. Some of those who had initially been denied
permits on 'security' groundsweregiven permits for no longer than three months.
259. By mid-November 2003, as many as seventy-five per cent of residents of
somevillages had not received access permits.212A number of farmers had reduced or
given up cultivating their crops due to lack of access. In some cases, villagers
objected to the permit system altogether and refused to accept permits issued, for fear
that this would legitimise the permit system and the measures associated with it,
resulting in harsh punitive closure measures. Both the denial of permits and the
required acceptance of permits are features of controlling the Palestinian presence in
the ClosedZone.260. The owners of farmland in the Closed Zone, as in other agricultural
businesses, are highly dependent on labourers, generally young men under the age of
thirty-five, to work the land. In the majority of cases only the owners of land have
received permits, but labourers necessary for cultivating and harvesting crops have
not. Consequently, land owners have not been able to cultivate and harvest crops,
suffering more economic hardship, while more labourers are threatened with
unemployment, exacerbating the already dire humanitarian situation in the Occupied
Palestinian Territory.Young Palestinian men of a similar age are categoricallydenied
permits to enterthe territoryof the State of Israel.
261. Most significantly, possession of a permanent residency or access permit
does not assure in any way an individual's freedomof movement into or out of the
Closed Zone. Gatesalong the Wall are closed most of the time, or open only for short
fifteen minute periods and at the discretion of soldiers. The opening times fluctuate,
and procedures are appliedhaphazardly.213 Furthermore,two critical checkpointsnear
the Green Line have been moved 3 km deeper inside the West Bank, rerouting the
movementpatterns of villagers.
212 For the breakdown of permits by village, see Appendix: "Closed Zone Permit System," Part
A.262. During the month of October 2003 alone, the gates along the Wall were
closed for approximately 18 to 22 days straight, primarily because of Israeli Jewish
holidays. By closing these gates, Israel is applying the same procedures that it applies
to crossing points between the Occupied West Bank and the territory of the State of
Israel. This closure has had dire economic effects on theareas within the Closed Zone
and those communities dependent on agricultural produce and poultry from these
areas. For example, in the village of Falamya alone, hundreds of citrus trees are dying
due to lack of irrigation. In the village of Jayyus, approximately 90 per cent of the
pava crop was lost. Also, one of the largest poultry farmersin the West Bank lost his
entire stock of 8000 chickens. The same poultry farmer had previously lost 7000
chickens due to sustainedgate closures in August 2003.
263. In some areas, gates re-opened around the weekend of 24 to 27 October
2003, but for only five to fifteen minute periods, two to three times a day. These hours
are inconsistentwith the farmers' working hours and limited vehicle use is permitted,
if at all. Donkey-carts and tractors are primarily permitted, but not trucks necessary
for transporting produce to market. Consequently, farmers cannot cultivate, harvest
and market their crops. Moreover, mainly school children and teachers have been
allowed to utilize the gates under the new permit procedures. Inconsistent opening
times ensure that students and teachers are fiequently late to class. Also, villages
reliant on the delivery of water by tankers are being denied water, as tankers cannot
complete their deliveries during the limited opening times. Generally, basic
supplies-including poultry, bread and vegetables-are delivered by trucks, but
because of the lack of permits and closureof gates the goods aremoved by a 'back-to-
213 On gate closures in Jayyus and Qalqiliya, for instance, see Appendix: "Closed Zone Permit
117back' system(unloading from one truck and reloading ont0 another at checkpoints)
which increasestransportationcosts (SeePhotograph23).
264. In other areas, such as the village of Attil (near Zayta) and the city of
Qalqiliya, although farmers have been granted permits to access their land, the gates
remain closed. For example, the gate for Attil and one of the gates for Zayta have
never been opened since they were installed. Other gates have remained closed since
4 October 2003, such as the northem gate in Qalqiliya. In other cases, as a result of
the Wall, the distance to farmers' land is great: forexample in Daba, where fmers
must make a 30 km round trip. Despite Israel's recent announcementsof the easing of
restrictions, including extended opening times of gates, the opposite is occurring.For
example, near the Daba area in the Closed Zone, two smaller gates used for Bedouin
schoolchildrenwere sealed shut in early January 2004.
265. Between the issuance and renewal requirements of permits, and the closures
of gates and checkpoints, Israeli authorities are able to manage the ebb and flow of
Palestinian life in and around the Closed Zone. Israeli measures and procedures are
forcing Palestinian residents to reconsider the viability of remaining inareas where
freedom of movement does not exist or where permits are not granted to landowners
andlor labourersand the abilityto pursue a livelihood is thus severelyrestricted.
266. In some cases, Palestinianshave been told explicitlythat they cannot live in
their home area, leading to the de-population or displacement of parts of the Closed
Zone. For example, one farmer in Jayyus living in the Closed Zone was told in early
System," PartsB and C. Also see Photographs16-22.
118January 2004 by an Israeli officer that he and his family would have to move to the
east of the Wall, with the rest of the villagers. In another case,erly Zayta farmer
living in the Closed Zone received a permit, but his daughter, and principal labourer,
did not. In yet another case, the Arab Ramadin (Bedouin) living in the Closed Zone
were recently issued with military orders to stop work on six shelters where they are
currently living (with demolition orders expectedto follow, as happened in the nearby
village of Wad Irsha). Israeli Civil Administrationficers informed local officials in
Qalqiliya that the Arab Ramadinwould have to be relocated.
(e) De Facto Annexation and Confiscation of Land
267. The regime of the Wall separates the Palestinian people from the land
between the Wall and the Green Line. This, along with the practical, administrative
and other measures described above, amounts to de facto annexation of this land by
Israel. If al1788 km of the Wall are completed, then more than 43.5 per cent of the
West Bank will be located outside the ~all.~'~ This will leave 56.5 per cent of the
West Bank as enclosed Palestinian areas. Of this figure, 2 per cent of the West Bank
will be inside walled enclaves. Such adefacto annexation is occurring in addition to
the direct confiscationof landaking place in relation to the constructionof the Wall.
To date, 95 square km of land, or 1.6per cent of the West Bank, is outside the
completed section of Phase 1of the Wallbetween Salemand Masha (Salfit).
An additional 661 square km will be outsidethe approvedPhase II of the Wall
(including around 'Ariel', 'Adumim' and Al-Khali1(Hebron)). This is almost
an additional 11.4 per cent of the West Bank, bringing the total landtside the already constructed and approved Western sections of the Wall to 13 per
cent of the West Bank.
If the recommended sections of the Eastern Wall in Phase III are completed,
then approximately another 1786 square km of land, or 30.5% of the West
Bank, will be outside the Wall. This will bring the total area outside the Wall
to 2541 squarekm, or 43.5 per cent of the West Bank, leaving 56.5per cent as
walled-inPalestinian areas.
In Jerusalem, approximately 336 square km will be outside the Wall over a
length of 145km, which includes the settlement blocs of 'Giv'on','Adumim'
and 'Etzion West'.
268. The majority of military orders issued for the seizure of land for the
construction of Phase 1of the Wall are valid until 31 December 2005.However, the
indefinite extension of the orders is not prevented by military legislation. These
orders state that the basis of land seizure is military necessity, and the orders become
effective on the date of signature. Landowners, in general, learn of the confiscation
orders only when notices are placed on their land, often just tacked to a tree, despite
the obligation to deliver copies of the orders directly to landowners. This method of
notification has proven arbitrary at best. While earlier orders detailed the appeals
process, subsequent orders failed to explain the right to appeal, although affected
parties can still file a petitionto the Israeli High Court of Justice.
214
'Outside' the Wall refers to landand communities located west of the Western Wallor east
of the projected Eastern Wall.nside'the Wall refers to land and communities to be encircled by the
Wall or enclosed within enclaves.269. The Israeli Military Commander, who is responsible for issuing the military
orders for the confiscation of property, has the power to override any
recornmendations made by the Legal Advisor in appeals by landowners against the
confiscation order. Therefore, although the landowner has the right to appeal against
the confiscation order, the appealprocess is problematic. Additionally, many affected
landowners have experienced difficulties in proving ownership, because the land
registration system in the West Bank is notupdated.'15
270. Despite the fact that military orders provide that landownershave the right to
request compensation for confiscation of land, no process by which this may be done
is in place. According to the Israeli Defense Forces, landowners may seek
compensation for damage to land and structuresas a fixed sum, in addition to a fee for
usage of the land. The Israeli Ministry of Defense calculatesthe rate of compensation,
which only covers property that has been confiscated or damaged for construction of
the Wall and depth barriers. Property that has been damaged due to the landowner's
inability to access the property inrder to cultivate it is not included in calculations of
compensation. To date, the majority of landowners have not applied for
compensation, primarily fiom fear that agreeing to take the compensation would
legitimizethe confiscationprocess.
(f) Displacement andOthcr Dcmographic Effects
271. Currently, approximately 13,500 Palestinians are located outside Phase 1of
the Wall. However,the number will rise to 343,300if al1threephases are completed.
215
SeeChapter4. There are currently 15 Palestinian villages with approximately 13,500
residentslocated outsidethe completedsections of Phase1of the Wall.
There will be an additional 60 Palestinian villages and towns located outside
the sections of the Wall that areunder construction or that have been approved
in Phase II.The total number of 75 villages and towns constitute 13per cent of
al1 recognized West Bank Palestinian localities. The total number of
inhabitants will be nearly 336,000 Palestinians (some 65 per cent made up of
East Jerusalem residents), comprising about 14.5 per cent of the Palestinian
population of the West Bank.
With completion in the Jordan Valley of Phase III of the Wall, there will be a
total of 91 Palestinian villages and towns located outside the Wall. This will
bring the total number of inhabitants located outside the Wall to 343,300
comprising 14.9per centof the Palestinianpopulation of the West Bank.
In addition, 156 Palestinian towns and villages will be directly affected2I6by
the Wall because they will be cut off fiom their land. The inhabitantsof these
towns and villages number 522,000, comprising 22.6 per cent of the
Palestinian population of the West Bank. Altogether, the number of
Palestinians who will be located outside al1three Phases of the Wall or who
will have lost land to the other side of the Wall will be 865,300, or 37.5 per
cent of the Palestinian populationof the West Bank.
272. The Wall will isolate Palestinians living in the Occupied Palestinian
Territory, including East Jerusalem, intensi@ing the economic, social, and cultural
216 'Directly affected' communities refersto either those villages located outside the Wall or
those villages located inside the Wall, but whose land is located outside the Wall. Directly affectedhardships they already face as a result of a strict closure policy that has been in effect
since the beginning of the second Palestinian intifada in September 2000.~" The Wall
disconnects Palestinian populations, concentrating and confining separated parts of
the community in different areas, surrounding them with barriers and military
personnel and restricting their movement outside of their confined areas in a
controlledmanner.
273. The implications of the Wall on al1aspects of the social fabric of Palestinian
life are wide reaching. This has already been evidenced in the creation of pockets of
isolated and vulnerable population clusters that have been severed from basic social
services and networks, populations that have already suffered greatly over the past
three years fiom a strict Israeli imposed closure poli~y.218 (See Map 5: The Wall and
Closurein the West Bank)
communities include: in Phase 1,26 localities with 73,000 individuals; in Phase II, 105 localities with
311,000individuals; and in Phase III, 25 localities with 138,000individuals.
217 Between 11-19 August 2002, Ms. Catherine Bertini, Persona1Humanitarian Envoy to the
UN Secretary-General, travelled to the region in order to assess the humanitarian situation. In her
mission report, Bertini noted, "The situation is a crisis of access and mobility. Palestinians are subject
to a variety of closures, curfews, roadblocks and restrictions that have caused a near-collapse of the
Palestinian economy, rising unemployment, increased poverty, reduced commercial activities, limited
access to essential services (such as water, medical care, education, emergency services) and rising
dependency on humanitarian assistance. The restrictions affect almost al1 activities, rendering most
Palestiniansunable to cany out any semblance of a normal life and subject to daily hardships,
deprivations and affronts to human dignity..) There is a consensus among al1parties, and this report
confirms, that the current regime of closures and curfews is having a devastating impact on the
Palestinian population, both on their economy and the humanitarian situation." Catherine Bertini,
Persona1Humanitarian Envoy of the UN Secretary-General, Mission Report: 11-19August 2002, pp. 1
& 4, www.reliefweb.int/library/2d 002/un-eopt1/aug.pdf.. The report appears as Annex 14to
this Written Statement.
218 The Report of the Mission to the Humanitarian and Emergency Policy Group (HEPG) of the
Local Aid Coordination Cornmittee (LACC) The Impact of IsraeIS Separation Barrier on Affected
WestBank Communities,(4 May 2003), identified four main areas of concem in the construction of the
Wall regarding social effects:1. The creation of pockets of very isolated and vulnerable population
clusters with a highly inadequate social infrastructure, compounded by a thin local distribution of NGO
and UNRWA service providers as compared to other areas of the West Bank; 2. Aggravated stress on
local public service providers, due torther duplication and dispersa1of facilities, staff and resources
in order to accommodate mobility restrictions; 3. Additional erosion of educational enrolments and
attainment among the affected population and, in particular, in rural communities, adding to the ranks
of a 'lost generation' of Palestinian children; 4. Increased vulnerability of the chronicallyil1 and
individuals requiring emergency and specialist care. Similarly, increased vulnerability of women and274. According to a household survey conducted by the Palestinian Central
Bureau of Statisticsin October2003,91% of households surveyedcaught betweenthe
Wall and the GreenLine indicated a negative impact on social activities,while 83.3%
of households surveyed indicated a negative impact on cultural activitie~.~'~ Access
has becomeone of the foremostfactors in determining sustainabilityof social services
in affected areas. Someof the most frequentlyreportedproblemsof accessing services
occur in relation to education, health, and water resources, in addition to solid waste
di~~osal.~~~
275. Socialconditionsalready are deterioratingnear the completed sections of the
Wall. As with the economy, this deterioration provides a glimpse of the conditions
that would be likely to prevail throughoutthe West Bank if the Wall were completed.
The continued delivery of essential social services in affected communities depends
critically on the ability of providers and targeted beneficiaries to circumvent Israeli
controls and checkpoints, for example, by using agricultural back roads and open
fields. According to officiais at the Palestinian Ministries of Health and Education in
Qalqiliya and Tulkarem, for example,this has been the case for health staff travelling
to cany out regular vaccinations, and teachers and doctors commuting to village
children. (p.37). The Report is among the dossiers submittedby the Secretary-General,as Dossier
219 85.
Palestinian Central Bureau of StatisticsI,mpact of the Separation Wallon the Socioeconomic
Conditions of Palestinian Households in the Localitiesin which the Separation WallPasses Through,
(October2003), December 2003,p. 5.
220 Follow-Up Report to the Missionto the Humanitanan and Emergency Policy Group (HEPG)
of the Local Aid Coordination Committee (LACC), The Impact of Israel's Separation Barrier on
Affected West Bank Communities: Access Issues in "StageA Localities" - Update Number 3, 30
November 2003, p. 12. The Report appears in the dossiers submittedby the Secretary-General, as
Dossier no. 88.schools and clinic~.~~'Villages located between the Wall and the Green Line are the
communities most directly affected by the Wall. The completionof the Wall will have
a devastating affect on the Palestinian community, further degrading the Palestinian
economy, increasing unemployment and poverty, reducing commercial activities,
limiting access to essential services (such as education, medical care, emergency
services,water) and increasingdependency on humanitarianassistance.
276. The Wall will have serious implications for Palestinians as regards to
residence and migration, primarily the destruction or loss of household structures and
displacement fiom areas most affected by the Wall on both sides. By October 2003,
5.0% of households west of the Wall and 4.9% on the eastern side of the Wall
changed or intended to change their place of re~idence.~~I~n the northern West Bank,
a total of 402 households were displaced due to the Wall, 113 of which are in the
Jenin Governorate, totalling 2,323 individu al^.^^^ Of particular concern to local
inhabitants is the possibility of increased uprooting and displacement as a result of
harsher living conditions, including high levels of social and economic
marginalization,property demolitions and protracted access restrictions in threatened
villages. High-risk communitiesinclude 'Azzun 'Atma, Ras at Tira, and Ad Dab'a in
221
Report of the Mission to the Humanitarian and Emergency Policy Group (HEPG) of the
Local Aid CoordinationCornmittee (LACC), The Impact of Israel's Separation Bawier on Affected
West Bank Communities,(4 May 2003), p. 38. The Report appears in the dossiers submitted by the
Secretary-General,Dossier no. 85.
222 Palestinian CentralBureau ofStatistics,Impact of the Separation Wallonthe Socioeconomic
Conditions of PalestinianHouseholds in the Localities in which the Separation WallPassesThrough
(October2003), December 2003,p.5.
223 Palestinian Central Bureau of Statistics, Suwey on the Impact of Separation Wallon the
Localities WhereitPassed Through,2003, Press Conference on SurveyResults, (August2003).Qalqiliya, and Khirbet 'Abdallah al Yunis, Dhaher al Malih, and Umm ar Rihan in
Jenin,with an estimatedtotal population of approximately2,700people.224
277. Destruction caused to houses as a result of Wall construction is also a
determiningfactorin population displacement. Housing units amountingto 19.3%of
households locatedwest of the Wall and 30.1% of households east of the Wall were
totally or partially destroyed. 8.7% of households on the west side of the Wall
indicated that their houses were subject to harm totally or partially, while 23.1% in
the east indicatedthe ~ame.~~'
278. Additionalpossible factors leadingto interna1displacementas a consequence
of the Wall's constructionmay include:
a) Migration of individuals or families fiom their places of residence
dueto damageto, or completedestructionof these residences;
b) Migration of either individuals or families possessing Israeli
identificationfromthe West Bankto Israel;
c) Attempted migration of individuals or families to or fiom those
areasbelievedto fa11inbetweenthe Wall and the Green Line;
d) Movement of traders to those areas in close proximity to planned
terminals in the Wall, in order to facilitate the flow of goods
betweenthe West Bankand 1srae1.~~~
279. Population migration as a consequence of Wall construction in the northern
West Bank is occurring.Migration to Israel of males with Israeli Identification Cards
has been the most common typeof population movement, and wasgenerally initiated
224
Report of the Mission to the Humanitarian and Emergency Policy Group (HEPG)of the
Local Aid Coordination Committee (LACC),The Impact of Israel's Separation Bawier on Affected
WestBank Communities, (4 May 2003), p. 46. The Report appears in the dossiers submitted by the
Secretary-General,Dossier no.85.
225 Palestinian Central Bureauof Statistics,Impact of the Separation Wallon the Socioeconomic
Conditions of Palestinian Households in the Localities in which the Separation WallPasses Through
(October 2003),Press Conferenceon SurveyResults, (December2003).
226
Follow-Up Reportto the Mission to theHumanitarianand Emergency Policy Group (HEPG)
of the Local Aid Coordination Committee (LACC), The Impact of IsraelS Separation Barrier ononce construction began in earnest. 227However, increased isolation, lack of social
services, property requisitioning and destruction may lead to greater population
displacementas constructionof the Wall continues.
(4) Correlation ofthe Route ofthe Wall to Settlements,Roads andWater
Resources
Relationshipof the Wall to Settlementsand Roads
(a)
280. The Dugard Report (2003) (para. 12)makes the following observation about
the relationship of the Wall and settlements:
"The Wall must be seen in the context of settlement activity and the
unlawful annexation of East Jerusalem. Settlements in East Jerusalem
and the West Bank arethe principal beneficiaries of theWall.. .."
In the words of an Israeli expert on West Bank topography and planning, the Wall is
part of a hermetical logical chain of excessive territorial-based 'security' pursued by
Israel:
"It started with the making of a line of Settlementsalong the Jordan
Valley, then continued with the seeding of strategic settlement points
across the depth of the territory, then with an attempt to collect al1
points within separateand convolutedbarrier line~."~~~
281. The constructed and approved sections of the Wall situate approximately 80
percent of the settler population to the west of the ~all.~~~ With the projected eastem
Wall along the Jordan Valley, an additional 8 per cent of settlers will be situated
outside of the Wall. (See Map 9: The Wall and Israeli Settler Population in the West
Affected WestBankCommunities:Jenin Governorate - UpdateNumber1, (31July2003) p,.16.The
Report appearsin the dossiers submittedby the Secretary-General, Dossierno.
227Ibid.,p21
228 Eyal Weizman,"Ariel Sharon and the Geometry of Occupation, P3,"15 September 2003,
2297,www.opendemocracy.net/themes/article.isp?id=2&a~icleID=l476.
This figure is based on calculations fro2003esettler population figuresdrawn from the
Israeli Knesset Research Centre. Israeli figures may differ because Israel illegally annexed East
Jerusalem and thereforeoes not consider settlers in East Jerusalem as part of the population of the
Occupied Palestinian Territory.Bank). The completed, approved and projected route of the Wall delineates Israeli-
defined geo-strategic areas, and hence, Israel's integrated system of settlementsand
by-pass road~.'~'
282. The route of the Wall is pushed away fi-omthe Green Line, apparently to
incorporate the main east-west by-pass roads and north-south linkages for these
settlements.For example,the route of the Wall in the 'Alfe-Menashe7settlementarea
correspondsto the settlementroad under construction linking the existing Highway 5
and 'Alfe-Menashe'to the new Highway 55, also under construction. (See Qalqiliya
inset on Briefing Map, and Map 12b: The Wall in the West Bank - Section b:
Qalqiliya Area). The route of the Wall delineating the 'Ariel finger7of settlements
encompasses the existing roads, namely Routes 5, 55 and the current extension of a
new road 55 under construction. Similarly,in Phase II, Route 60, which is situatedto
the west of Bethlehem, serves to link the settlementsof 'Har Gilo' and 'Gilo' (South
of Jerusalem) with the 'Etzion' bloc, situatedsouth. (See Bethlehem West inset on
BriefingMap).
283. The route of the Wall facilitates continued settlementexpansion. It servesto
consolidatethe presence and viability of settlementsin areas regarded by Israel as of
strategicimportanceto it. The planned expansion areas and the regionaljurisdictional
areas of the settlementscorrespondto the approved and projected routes of the Wall,
indicating that the route of the Wall has been determined in order to accommodate
230
These areas include a 10-15km belt running the length of the Jordan Valley, astrip running
north of the Jerusalem-Jericho road reaching and includingthe Latrun salient, the entire Judean desert
from Mt. Hebron to the Dead Sea, Jerusalem, and a wedge east of Qalqiliya and Tulkarem running
north-south along the ridge torate the Palestinian population in the Occupied Palestinian Territory
from the Palestinians livinginside Israel.continued settlement expansion in 'authorized areas' as well as future settlement
development. (See Map 8: The Wall and Israeli Settlement Expansion in the West
Bank)
284. For example, the enclosure of Qalqiliya by the Wall into a 'bottle-neck' is
apparently causedby the 'Zufin' and 'Alfe Menashe' settlements situated tothe north
and south of Qalqiliya,respectively, and by the Israeli settlement expansion areas (as
shownby blue shadeson the inset map of Qalqiliya on the Briefing Map). Palestinian
access to and use of land must first be limited and then denied if these settlementsare
going to be able to expand geographically in accordance with these authorized plans,
and settlers are to enjoymovement andaccess to and fiom the territory of the State of
Israel. For example,the settlementsof 'Zufin' and 'Alfe Menashe' are both planned
to expand to approximately six and two times, respectively, their current sizes on
Palestinian cultivated areas. (See Qalqiliya inset on Briefing Map, where the blue
areas represent planned settlement expansion.) Two illustrative examples in Phase II
are the settlements of 'Ofarim' and 'Efrat'. The route of the Wall will enable the
settlement of 'Ofarim' to fully realize its planned growth to approximately eleven
times its current size, and the settlement of 'Efrat' to approximatelythree and a half
times its current size. (See BethlehemWest inset on Briefing Map; see also Map 8:
The Wall and Israeli SettlementExpansion). Similarly, in order to build the by-pass
roads for use by Israeli settlers, Palestinian access to and use of land must be
denied.23
21
See Chapter 4 on Israeli land seinire policies for construction of by-pass roads and
settlements.285. In East Jerusalem, preparations have begun for two new settlements, 'Nof
Zahav' and 'Kedimet Zion', that are situatedto the west of the Wall. In the area
northwest of Jerusalem, the location and route of the double-Walled enclave areas
correspond with the Israeli plans for expanding and linking the settlements of the
'Givon settlement and facilitate planned northern expansion of the west
Jerusalem suburb of Mevaseret Zion across the Green Line on the Palestinianvillage
lands of Beit Iksa and Beit Surik.
286. The settlement areas in which the majority of tenders were issued by the
Israeli Ministry of Housing and Israeli Land- Authority in 2003 also correspondto the
route of the Wall. Of the known 2,127'~~construction tenders issued by these two
government agencies, al1are for ~ettlements'~~ situated to the west of the Wall, with
the exception of tenders for the 'Neve Deklim' settlement in Gaza and for 'Ma'ale
Adumim'in the West Bank, around whichthe route of the Wall is not yet determined.
Furthermore, publication of the final route of the Wall has reportedly increased
housing sales in settlements such as 'Modi'inIlit,' and 'BeitarIlit,' which are located
to the west ofthe ~a11.'~~
287. The Wall entrenchesthe pattern of separationcreated by Israel's settlements
in the Occupied Palestinian Territory and the grid of by-pass roads built to link these
232 This bloc includes the settlements of 'BetHoron,'Including 'Givon Ha Hasasha,' 'Givat
Ze'ev,''Har Adar,' and, 'Ha Samuel.'
233 The Israeli Govemment publishes these tenders in the Israeli press and on the Ministry of
Housing and Construction web-site. See Foundationfor Middle East Peace, "Snapshots of Settlement
Expansion", Report on Israeli Settlement in the Occupied Tenitories, Vol. 13, No. 6, Novem-er
December 2003, p. 12. In addition, 400 tenders for 'Har Homa' were announced in late September
2343.
These settlements are 'Ariel', 'BeitarIllit', 'Efrat', 'Elkana', 'Har Adar', 'GivatZe'ev', 'Har
Homa', and 'Kame Shomron'.settlementswith each other and to the territory of the State of Israel. For example, the
decision to wall Qalqiliya from the east allows the fiee movement of settlers between
the area of the settlements of 'Ariel' and 'Alfe-Menashe' and theGreen Line by
limiting Palestinian access on the old Route 55 in the Occupied Palestinian
~erritor~.~~~
288. In Phase II, the approvedroute of the Wall which retains the 'Ariel finger' of
settlementswill pennanently prevent Palestinian access to this area. Currently, access
in this area is regularly denied or severely restricted because of the presence of
Route 5 and Route 446, Israeli militasr patrols, and threats of violence by Israeli
settlers residing in the 'Brukhin' settlement. (See Briefing Map, 'Ariel Finger').
Similarly, in the southem West Bank, Route 60, which is the main thoroughfare
linking Bethlehem to Al-Khali1(Hebron), will be situated to the west of the Wall,
permanentlyrestrictingPalestinianaccessto this r~ad.~~~
289. Increasingthe trend towards further separationand isolation,the route of the
Wall is creating new artificialpatterns of movement of Palestinianpeople and goods.
The route of the Wall encloses Qalqiliya from the south and Habla from the north,
ensuring that Palestinians are not able to cross or utilize settler by-pass Route 55 in
235 Foundation for Middle East Peace, "Settlement Time Line," Report on Israeli Settlement in
the OccupiedTerritories, Vol. 14,No. 1,January-February 2004, p. 13.
236
Since the construction of the Wall, the eastem gate at Qalqiliya has been the only possible
point of entry into and exit out of Qalqiliya.ess is controlled by Israeli military presence. The
construction of the eastem gatelcheckpoint has restricted or denied Palestinians access to Route 55,
which is the main road from Qalqiliya leading eastward to Nablus, and sections of which are also used
by Israeli settlers. Ze'ev Schiff, "Fence route is moved, scrapping 2 enclaves," Ha'aretz, 12December
2003.
237 Currently, Palestinians are only allowed to use parts of Route 60 if they have been issued a
permit. Route 60 was originallybuilt as the main north-south artery linking Palestinian towns prior to
the 1967occupation.order to accesstheir lands.238Similarly,because of the constructionof the Wall in the
Occupied Palestinian Territory near the 'Ariel finger', the residents of the Qalqiliya
area wishing to reach Nablus will have to detour significantly to do so. Rather than
travelling 31km directly to Nablus, the residents will have to travel around the
'Shomron'settlements and the Wall, travelling east to Azzun, north to Jayyus, up to
Kufr Jammal, then eastwards toward Nablus via Funduk or Beit Lid, increasing the
distanceby a minimum of 46 km, an increase of one-half on the distance of the direct
route. Likewise,the distancebetweenBidya to Salfit via Harris is approximately11.8
km without the Wall and Settlements. The reroute around 'Ariel' settlement
necessitates a detour via Azzun, Kufi Sur, Funduk, Immatin, Huwara and Iskaka to
arrive at Salfit after a 61.3 kmjourney, approximately five times the distance of the
directroute. (SeeBriefingMap)
(b) Relationshipof the Wallto Water Resources
290. The West Bank containsthreemain wateraquifers: the Western,the Eastern,
and the North-Eastern. The Western and North-Eastern aquifers extend beyond the
Green Line and are shared withIsrael. (See Map 10: The Wall and Water Resources
in the West Bank)
291. The soi1of the West Bank is rocky and difficult to drill; well field quality
varies greatly from one locationto another. The area along the northern and western
edge of the West Bank where the Wall is being constructed contains some of the
238
Many of the settler by-pass roads serve as functional baniers by their design. Some of the
roads do not have accesslentry points in PalestinianOther roads have fences or walls that run
parallel to the road, in effect, dividing villages from each other and preventing access across the road
for the Palestinian populated areas situated near the roads. For example, the Palestinian town of Old
Beit Hanina is now severed from Beit Hanina by a fenced-in highway, Highway 1, which links WestWestern aquifer's best well fields. Accessing the water is much easier and cheaper in
this area of the West Bank than further east.
292. Groundwater is the main source of water in the West Bank. Most of the water
supply for Palestinian use in the West Bank is secured from groundwater resources
through wells.
293. The construction of the Wall is having a severe impact on water access, use,
and allocation, particularly for the communities located close to the Wall's path and
for those communitieswho are now constrictedbetween the Wall and the Green Line.
294. Water accessproblems have already been caused and are likely to worsen as
the construction of the Wall is completed. There are instances where residents'
houses lie east of the Wall while their wells and water networks lie entirely west of
the Wall. In other instances, residents' wells are east of the Wall while their farrn
lands arewest of the Wall. This has entailed and will continueto entai1a considerable
reduction in the use of water by West Bank Palestinians. World Bank field
examinations have identified several difficulties concerning water access, especially
by private and communalowners of well~.~~~
295. As a result of diminishing access to water sources and farrn lands, the
Palestinian agricultural economywill suffer significantly. Once the western section of
--
Jerusalem with Israeli settlements innorth-~est Jerusalem. Palestinian residents ofOld Beit Hanina
must make longdetours or cross through a tunnelunder the Highway to access BeitHanina.
239 See The Impact of Israel's Separation Barrier on Affected WestBank Communities,Report
of the Mission to the Humanitarian and Emergency Policy Group of the Local Aid Coordination
Committee,4 May 2003.the Wall is completed, it is estimated that the annual value of agriculturalproduction
in the West Bank is predicted to decrease by 22.8 percent and by a total of 41.7
percent oncethe eastern section of the Wall is constr~cted.~~T ~his will also lead to the
loss of the current status of food security in the West Bank, which might lead to
further malnutrition-relateddiseases amongWest Bank ~hildren.~~~
296. The current courseof the Wall alongthe northern and westernportions of the
West Bank affects Palestinian allocations of shared water resources. The 2 km to
6 km wide strip along the northern and western West Bank contains critical
hydrologicalwell fields, which now fa11betweenthe Wall and the Green Line.
297. Projections of the eastern course of the Wall suggest that when the Wall is
completed, the West Bank will no longer be a CO-riparianto the Jordan River or the
Dead Sea. The Jordan Valley is potentially one of the main areas for Palestinian
agricultural expansion. If Israel were to construct the eastern section of the Wall, it
would obstruct Palestinian access to the water of the Jordan River, and this potential
of the valley would be undermined. Furthemore, the territory marked for the Wall in
and around East Jerusalem and the Jordan Valley areas commonly includes the
eastern slopes that control the headwaters of the eastern aquifer, where Israel has
already drilled many wells to supplyits settlementsin the OPT.
240 Applied Research Institute Jerusalem, "Undermining Peace, Israel's Unilateral Segregation
Plans in the Palestinian Temtories," December 2003.
241 Preliminary results of the first survey conducted by CARE International in August 2002
indicated an increase in the number of malnourished children with 22.5 percent of children under the
age of5 suffering from acute or chronic malnutrition in the West Bank and Gaza.(5) The Social andEconomicEffects of the Wall
(a) SocialEffects of the Wall
298. The Wall is having a significant impact on the social fabric of communities
in the Occupied Palestinian Territory, such as traditional and kinship ties, marriage,
social and religious activities, and restriction on movements for women. Social
relations and activities of Palestinian comrnunitiesliving to the west of the Wall have
been more affected than those living to the east of the Wall. A Palestinian Central
Bureau of Statistics ('PCBS') survey on comrnunitiesaffected by the Wall found that
90.6% of households west of the Wall were not able to visit their relatives, compared
to 63.5% living east of the Wall. The ability to conduct social and cultural activities
has been negatively impacted for 83.3% of households surveyed to the west of the
Wall and 48.4% of households to the east of the Wall. The Wall has become an
obstacle for marriage between individuals living on opposite sides of the Wall for
50.4% of those surveyed. Family members have been isolated from one another, with
50.9% of communities living to the west of the Wall already separated from their
relatives and 37.3% living east of the Wall separatedfromtheir relatives.242
299. No permits are given to pursue family relationships. Members of different
villages on both sides of the Wall are related through kinship or marriage. They are
part of either core families, or larger entities, like an a'ella' (extended family) or
'hamula '(clan). The Wall has separated several communities from their previously
close-by relatives.243
242 Palestinian CentralBureauof Statistics,Impact of the Separation Wallon the Socioeconomic
Conditions of Palestinian Households in the Localities in which the Separation WallPasses Through
(October2003), Press Conferenceon SurveyResults, (December2003),p5.
243 For example, the majority of the population of Khirbet Jubara stems originally from the
village ofA Ras. 250 people migrated to their nearby gardens in 196711972to better cultivate their300. As a result of construction of the Wall, many family members are now
isolated fiom each other, and villages that traditionally inter-married have been
unable to do so. People of Nazlat Isla, a village now located west of the Wall, have
social relations to al1nearby villages as well as to Baqa al-Sharqyia on the Green
Line. Approximately 70 of the male villagers have married across the Green Line. In
accordancewith prevailing custom, most of these women moved to the West Bank to
live with their husband's family. Yet, now with construction of the Wall, some men
have rented places across the Green Line to live there once the Wall is completed.
Women fiom Baqa al-Sharqyia who have married in Israel have al1moved across the
Green Line. For them it becomes difficult now to return and visit theirfa mi lie^.^^^
301. Many of the smaller Palestinian villages trace their origin from larger towns
in the West Bank. Thoughtheir members have migrated at somepoint in history, they
stillmaintain relationships with the town. Often the inhabitants of far off areas stem
from the same 'hamula'. Religious and ceremonial occasions, especially weddings
and funerals, require the attendance of members of the larger family, to pay respect
and to contribute money to the event, significant features of these social occasions.
Especially in societies with a weak state structure, such social occasions are
land. In the 1970s Khirbet Jubara became administratively an independent village. However, family
ties and maniage relations have remained as close. People from both villages still have an identity as
'one' village. They still share economic resources,and are integral part of a 'social network',in which
family members support each other. Only recently, the villages were geographically divided through
the Wall. Khirbet Jubara is now located in the Closed Zone. Since the construction of the Wall, people
from Khirbet Jubara can access A Ras through the gate that is opened twice a daA.Ras, only
farmers with a permit are allowed to visit their land in the Closed Zone, althoughts are not
permanent and may not be continuously renewed. Other villagers are not allowed to cross into Khirbet
Jubara and visit their relatives.
244
Interview with Abu Ashraf, member of village council in Nazlat Isa, 6 November 2003.
Follow-Up Report to the Mission to the Humanitarian and Emergency Policy Group (HEPG) of the
Local Aid Coordination Committee (LACC), The Impact of Israel's Separation Barrier on Affectedextremely important to continuously redefine the social cosmos of a people and
emphasizetheir common identi~.~~~
302. A significant portion of the Palestinian community holds close ties to land
and activities involving land. With increasing confiscations of land for construction
of the Wall, activities related to land use have diminished. For example, harvesting
olives has traditionally not only played an integral role in livelihood activity for
communities, but has also served to draw communities together during harvest time
through the act of harvestingand associatedcultural activities. Communitiesthat have
lost agriculturalland to the Wall can no longerparticipate in such activities.
303. The construction of the Wall is having a particular impact on women and
their mobility, given social noms relating to travel (the widespreadunacceptabilityof
travelling alone after dark or staying away from home for the night, for example).
Women who have married outside their village are facing increasing difficulty in
visiting relatives. A growing tendency to allow women to only many men on the
same side of the Wall is emerging in communities that have become isolated by the
Wall, as is a trend to many girls young as a result of Wall restrictions, so that the
father can avoid having to send them to school or university under insecure
circum~tances.~~~
WestBank Communities: Access Issues in "StageA Localities- Update Number 3, (30 November
2453),p. 14.
The population of RasTireh and Ras Atyia originally stems from Kaffr Thulth andshare the
same hamula. Now the Wall is separatingthe villagers in Ras Tireh from nearby close relativesin Ras
Atyia and other related villages,ch as Kaffr Tulth. People in Ras Tireh state that they feel very
isolated. Only a far-located gate allows them access to Ras Atyia, while relatives from Ras Atyia
cannot cross into their village.
246 Follow-Up Report tothe Mission to the Humanitarian and Emergency Policy Group (HEPG)
of the Local Aid Coordination Committee (LACC), The Impact of IsraelS Separation Barrier on304. The Wall is taking a psychological toll as well on Palestinians affected by it,
many of whom have expressed a sense of hopelessness with regard to the future of
their communities. Initial studies indicate that psychological impacts of the Wall on
affectedpopulations include depression, feelings of anxietyand hopelessness,feelings
of isolation, thoughts of suicide, and symptoms of Post-Traumatic Stress Disorder.
These effects have resulted from a lack of social support systems due to isolation,
limited socialrelations as people are confined to their homes, disintegrationof family
and socialrelationships,and an increase inunemploymentand p~~erty.247
EconomicEffects of the Wall
(b)
(i)Macro Economic Impact
305. The Wall and its attendant policies deprive Palestinians of their economic
resources, and their ability to efficiently utilize themto serve Palestiniandevelopment
interests. Palestinian economic resources such as land, water, labour and skills are
either being confiscated by the constructionof the Wall or remain unemployed due to
lack of access.
306. Once completed, the Wall will create separate enclaves that are not
territoriallyadjacent to each other. Even if movement between them is allowed, under
administered conditions,the Palestinian national market will effectivelybe cut into a
Affected West Bank Communities:The "Jerusalem Envelope"- Update Number 2 (30 September
2003), p. 17.The Report appears in the dossiers submitted by the Secretary-General, Dossier no.87.series of disconnectedmarkets. The ability to trade services and goods or to seekjobs
in the entire Palestinian market will become unpredictable and expensive due to
Israelidenialof unrestrictedmovement ofpeople and goods.
307.
The Wall will impair Palestinian economic development and Palestinian
economic planning as its route confiscates and isolates Palestinian economic
resources and dissects the Palestinian market. Thousands of Palestinians depend on
farming as their main livelihood,particularly in the northern West Bank governorates,
where nearly 40 percent of the West Bank's agricultural land is10cated.~~T 'he Wall
already is depriving Palestinians of a portion of this means of subsistencethrough the
confiscation of thousands of dunums of rich agricultural land that have already been
destroyed or isolated. Even if the Israeli system of agricultural gates were
implemented, the increased travel time and expense involved would drive up
transaction costs significantly.The uncertainty about the future status of the land also
discouragescultivationand may result in evenhigher prices for agriculturalproducts.
308. With the inability to produce competitively and to access foreign markets
with minimumexpenses, the Palestinianmarket, as in the post 1967era, will become
hostage to the 'competitive' Israeli market. Israeli exports will become more
competitive than Palestinian goods; and foreign goods will become easier to import
through an Israeli interlocutor. The economic reality that would be created would
247
Palestinian Counselling Center,Mental Health Effects on the Israeli Apartheid Wall on
Palestinians in the Qalqiliya District: Pilot Questionnaire by the Palestinian Counselling Center,
October 2003, p. 6.
248 Report of the Mission to the Humanitarianand Emergency Policy Group (HEPG)of the
Local Aid Coordination Cornmittee (LACC),The Impact of Israel's Separation Barrier on Affected
West Bank Communities,4 May 2003, p. 43. The Report appears in the dossiers submittedby the
Secretary-General, Dossierno. 85.make opting for disengagement from Israel and diversiQing relations in the 'future'
very difficult.
(ii) Micro Economic Impact
309. In the process of constructing Phase 1 of the Wall in departure from the
Green line, Israel has confiscated Palestinian land, destroyed Palestinian economic
resources,and impededPalestinian accessof goods, vehiclesand people to Palestinian
areas.
310. Land Confiscation: Inhabitants of 37 West Bank communities, with a total
populationof 108,776,lost lands for the constructionof the ~a11.~~~ By August 2003,
over 124,323dunums (31,O81 acres) of land under private Palestinian ownership, and
mostly containingorchards, field crops and greenhouses,were confiscatedto erect the
~a11.~~'
311. Destruction of Economic Resources: For the construction of the first phase
of the Wall, more than 100,000 trees were uprooted (of which 83,000 were olive
trees), causing seriousdamageto more than 2,500 acres of land,and more than 30,000
249 Follow-Up Report to the Mission to the Humanitanan and Emergency Policy Group (HEPG)
of the Local Aid Coordination Committee (LACC) -"The Impact of Israel's Separation Barrier on
Affected West Bank Communities: Access Issues in "Stage A Localities" Update Number 3", 30
November 2003, p. 6. The Report appears in the dossiers submitted by the Secretary-General, Dossier
250 88.
Palestinian Central Bureau of Statistics, Suwey on the Impact of the Separation Wall on
Localities Whereit Passed Through,2003, (August 2003), p. 7. According to the survey, 62,623
dunums (15,656 acres) contained olive trees, 18,522 dunums (4,631 acres) were cropland, 9,800
dunums (2,450 acres) were pastureland and 8,008 dunums (2,002 acres) were cultivated with citrus
trees. Additionally,21,002dunums (5,251acres) of privately owned land were levelled.meters of irrigation network and water pipelines have been de~tro~ed~~'(See
Photographs 6-8). In the process of constructing the first phase of the Wall,
commercial facilities located in the route of the Wall or in its vicinity have been
destroyed. Forexample,nearly 200 shops comprising the main commercialcentre in
Nazlat Isa in the northern West Bankwere demolished for constructionof the ~a11'~~
(SeePhotographs9-12).
312. InaccessibleEconomicResources Due to Movement Restrictions: Economic
resources that have not been demolished or destroyed by the Wall have been
diminished due to lack of access. Access of farmers to agricultural land they own or
cultivate outside the Wall has been problematic due to permit restrictions and
difficulties in obtaining permits for farmingvehicles. The Wall also isolates residents
from 50 underground water wells that are relied upon for drinking water and
agriculture.253Additionally, as grazing activities require continua1access to the land,
restrictionson accessto landshave resulted in the death of livestock.
313. Access to Markets: Prior to construction of the Wall, local markets were
significantly dependent on Israeli consumers purchasing lower cost goods and
services from Occupied Palestinian Territory. The construction of the first phase of
the Wall has rendered this impossible. Costly and burdensome 'back-to-back'
transportation has been introduced for the transport of goods between areas outside
the Wall and areas fallinginsidethe Wall.
251 Palestinian Agricultural Relief Committee, Needs Assessrnent Study and Proposed
Intervention 4, (2003).
252 Palestinian Monitoring Group, "Special Report: Land Confiscation and Destruction of
Property-Focus: Nazlat Isa, Zayta, and BaqaSharqi4aSeptember 2003.
253 Ibid.314. Access to Employment: Palestinians now living outside the Wall face
difficulty accessing the employrnent market. Palestinians face more difficulty
accessing the job market that now exists outside the Wall because of the need for
permits to enter or leave the closed areas. At least 23.6% of the population living to
the west of the Wall with only one employed household member have changed their
work totally (activityand place of work), comparedwith 21.7% of those living east of
the ~a11.~~~
(iii) Economic Consequencesof Phase I
315. The construction of the Wall has led to four principal economic
consequences: loss of economic assets, loss of potential investment, higher
transactioncosts of produce, and higher rates of unemployment.
316. Loss of Economic Resources: Permanent confiscations of economic
resources, damaging economic resources or the inability to employ economic
resourceshave al1resultedin the permanent loss of economicresources.
317. Loss of Potential Investment: Uncertainty concerning the future of areas
outside the Wall has led to a decrease in economic investment opportunities.
Uncertainty poses particular dilemmas for agricultural producers, including whether
to plant at all, the choice of crops to plant, and the level of investment in planting.
Loss of potential investmentaffects areas outsidethe Walldue to lack of accessibility
254 Palestinian Central Bureau of Statistics, Impact of the Separation Wallon the Socioeconomic
Conditions of Palestinian Households in the Localities in which the Separation WallPasses Through
(October2003),Press Conference on Survey Results, (December p.05.,and increased risk of destruction, as well as areas remaining inside the Wall as they
become segregated enclaves with no potential for economic prosperity. Even if an
investor wished to invest in the Closed Zone, Israeli restrictions would make such
investrnentspractically impossible.
318. Higher Transaction Costs of Produce: Because of the difficulty, or lack, of
access for both people (requiring permits and passage through gates) and goods
(requiring back-to-back shipment), transportation and production/cultivation costs
have become exponentiallyhigher.
319. Higher Unemployment Rate: Phase 1 of the construction of the Wall has
resulted in increasedunemploymentrates in Palestinian areas, both outside and inside
the Wall.
320. Collectively, the above economic consequences of the Wall and its attendant
policies are depriving the Palestinians of their ability to utilize their economic assets
and to determine their economic policies, and are causing increasing poverty among
the population.
Health Effects of the Wall
(c)
321. The Wall has restricted access to health facilitiesin communitiesenclosed as
a result of its construction,particularly those living between the Wall and the Green
Line, and threatens tofurther imperil health services. This has aggravated the already
degradedlevel of health servicesas a result of increasedrestrictions of movement andthe military closuresthat have been imposed by the Israeli occupying forces since the
beginningof the currentintifada.
322. After construction of the Wall, 80.1% of residents west of the Wall and
48.3% of residents east of the Wall will need to travel more than 4 km to reach the
nearest hospital. Additionally, the Wall will pose an obstacle to access necessary
health services for 73.7% of households west of the Wall and 38.6% east of the
~a11.~~~
323.
Nine of the 15 cornmunities in the Closed Zone west of the Wall lack a
medical facility entirely and rely on travelling health care professionals for medical
services.The Wall has made suchtravel and access nearly impossible.256Many other
affected localities in the north provide basic preventive and primary services,but rely
on the three main cities (Qalqiliya, Tulkarem, and Jenin) for specialized and
257
emergency care, and for regular dialysis and chemotherapy treatments.
Constructionof the Wallin the south,particularly in the area in and around Occupied
East Jerusalem ('Jerusalem Envelope'), has made access to health facilities
problematic for Palestiniansresidingoutside of the Wall. This will be the case for the
255 Palestinian Central Bureau of Statistics,Impact of the Separation Wallon the Socioeconomic
Conditions of Palestinian Householdsin the Localities in which the Separation WallPasses Through
(October2003), December 2003, p. 5. Statistics are based on a household survey of 890 households in
Palestinian localities where the Wall passes through. 195 households were located west of the
256aration Wall and 695 east of the separationWall.
Health workers are unable to reach these areas as often if at al1because of increased time
travel, costs involved in transportation, and irregular Wall gate opening times. For instance, residents
of 'Azun 'Atma, a villageof 1,500 east of the Wall, now have less frequent access to traveling health
workers and cannot get into Qalqiliya for emergency services. For detailed case studies, see: Report of
the Mission to the Humanitarian and Emergency Policy Group (HEPG) of the Local Aid Coordination
Committee (LACC), TheImpact ofZsrael SSeparation Barrier onAfSectedWestBankCommunities,(4
May 2003), p. 41 (which appears in the dossiers submitted by the Secretary-General, as Dossier
no. 85), and B'Tselem 2003 Report, p. 17.entire West Bank if access to East Jerusalem hospitals that provide specialized
medical servicesnot available anywhereelse in the West Bankis restrictedbecause of
the ~a11.~~~
324. Regular preventive health services, which have already been underminedby
existing mobility restrictions, have been further hindered due to inability of residents
to access medical facilities.For example,UNRWA reports a 52% decrease in women
attendingpost-natal care. Prior to the intifada, 95% of women gave birth in hospitals.
This has fallen to 50% in some areas, and there are at least 39 documented cases of
women giving birth at ~heck~oints.~'~ Additionally, regular vaccination programs
have been pushedback, though with great effort somevaccinationshave ~ontinued.~~'
325. Withoutaccess to healthfacilities,residentsare more vulnerable to sanitation
problems, water-borne diseases, higher infant mortality, and lack of emergency
services. Rapid and effective emergency care has become increasingly inaccessible
unless providedby Israeli hospitals. The continuedconstructionof the Wall will only
compound these and other problems, delaying mobile clinics, ambulances and the
distributionof medical supplies and vaccines.It will also increase the strain on public
257 These include Umm a-Rihan, Khirbat 'Abdallah al-Yunis, Khirbat a-SheikhSa'ad, Khirbat
Dhaher al-Malah, Nazlat Abu Nar, Khirbet Jubara, Ras a-Tira, Khirbet a-Dab'a, and Arab a-Ramadeen
al-Janubi. UNOCHA,Monthly Status Report: The WestBank Wall,July 2003, p. 4.
258 For example, Augusta Victoria Hospital is the only hospital in the West Bank providing
kidney dialysis. Similarly Mukassad Hospitalprovides specialized heart care treatment. See: Follow-
Up Report to the Missionto the Humanitarian and Emergency Policy Group (HEPG)of the Local Aid
Coordination Committee (LACC), The Impact of Israel's Separation Barrier on Affected West Bank
Communities: The "Jerusalem Envelope - UpdateNumber 2, (30 September 2003), p.4. The Report
appears in the dossiers submittedby the Secretary-General,Dossier no.
259 UNRWA, Impact of the First Phase of the Securiîy Barrier on the Qalqiliya, Tulkarm and
Jenin Districts, (July 2003),p.6.
260 Report of the Mission to the Humanitarian and Emergency Policy Group (HEPG) of the
Local Aid Coordination Committee (LACC), The Impact of Israel's Separation Bawier on Affected
West Bank Communities, (4 May 2003), p.42. The Report appears in the dossiers submitted by the
Secretary-General,Dossier no.85.health providers by further dispersing facilities, staff and resources and adding to the
burden and costto village health centres.
326. Sanitation is also a significant concern for communities bordering the Wall
on either side. Many of these communities employ trucking servicesthat periodically
remove sewage and garbage from local holding facilities. The Wall has preventedthe
trucks fi-om accessing some villages and raised the cost of doing so for others,
increasing the risk of waste-related disease in these communities. Smaller
communities, for example Dhaher al Malih in the Jenin Governorate, have been
particularly impacted by access constraints affecting waste management. Since
construction of the Wall began, many communities located along its path have been
unable to dispose of their garbage because they cannot gain access to disposa1sites
located outside the municipal limit~.~~~
(d) Education Effectsof the Wall
327. Construction of the Wall, and the associated isolation and restrictions, has
impacted access to education. Across the Tulkarem, Qalqiliya and Jenin
Governorates, the Wall has directly affected 7,400 students, while at least 150
teachers in the Tulkarem Governorate now face severe difficulty reaching their
schools. Problems in the Qalqiliya Governorate are particularly acute because of the
single checkpoint in Qalqiliya city and the winding route of the Wall there. Physical
damage to educational facilities has occurredto structures near the route of the Wall;
261 Ibid.and Israeli authorities have prevented other schools Tom adding space to relieve
over~rowdin~.~~~
328. In the Tulkaremdistrict, with the largestnumber of communitiesenclosedby
the Wall, PalestinianMinistry of Education officiaisestimatedthat at least a month of
the 200314 school year has already been lost in 2003 alone, due to curfews or
movement restrictions imposed because of razing or construction associated with the
Wall, and that approximately 650 out of 1964teachers currently encounter difficulty
in reaching their classes.263Additionally, increasedpoverty rates associated with the
Wall will impact the ability of students to attend school, as families become
increasingly unable to pay school fees.
329. Several villages between the Wall and the Green Line have no primary or
secondaryschoolin their community, forcing studentsto cross the Wall to reach their
classes (See Photographs 21 and 22). As a consequence of delays at crossings and
gate closures, access to education for these students is now problematic.264
Additionally, permits are required to cross Wall gates for both students and teachers.
The issuing of permits to date has not been systematic; teachers in some villages or
districtshave receivedpermits to cross Wall gatesto reach their schools, which others
have not, as has alsobeen the case with schoolchildren.
262
263 Ibid. p. 40.
Ibid.
264 In Ar Ras, 44 of 172 students in primary school must come through the Wall every moming
from their hometown of Khirbet Jubara. Another 46 students from Khirbet Jubara go to the high school
in Kafr Sur. During closures or Israeli holidays, gates are not open, and these students cannot attend
classes. On other days, passage through the gates is delayed, sometimes for hours. Follow-Up Report to
the Mission to the Humanitarian and Emergency Policy Group (HEPG) of the Local Aid Coordination
Committee (LACC), The Impact of IsraelS Separation Barrier on Affected West Bank Communities:
Access Issues in "StageA Localities"- Update Number 3, (30 November 2003), p. 13. The Report
appears in the dossiers submitted by the Secretary-General,Dossier no. 88.330. The increased difficulties teachers and students are facing in reaching
schools and universities because of the Wall have played a significant role in
degrading the educational process. According to a recent survey conducted by the
PalestinianCentralBureau of Statistics, 13.9%of households east of the Wall with at
least one of their members attending school or university faced difficulties reaching
their school/university,while 29.4% of such householdswest of the Wall experienced
increased difficulties. School functioning has also been disrupted by the inability of
teachers to reach schools, with 45.3% east of the Wall and 74.6% west of the Wall
experiencing difficulties reaching schools. Additionally, movement to and fiom the
locality of residenceof 86.5%of femalestudentswho live to the west of the Wall was
restricted, while 77.4% of female students living to the east of the Wall experienced
restriction^.'^^
331. The psychological impact on students having to cross Wall gates or attend
classes in close proximity to the Wall has not yet been quantified. Given the
increased time needed in order to reach classrooms and the, at times, arduous routes
taken, and the overcrowdingof classroomsdue to access restrictions, student'sability
to concentrate and learn may be significantly lowered. The daily subjection to the
military on the route to school,andthe possible safetyrisks implied,will undoubtedly
have a longer-termimpact on Palestinianschoolchildren.
265
Palestinian Central Bureauof Statistics,Impact of the Separation Wallon the Socioeconornic
Conditions of Palestinian Householdsin the Localities in which the Separation WallPasses Through
(October2003). Press Conference on theSurveyResults, (December 2003), p.6.332. Students wishing to pursue post-secondary education will face severe
restrictions on their ability to attend universities and colleges with the imposition of
the permit regime and travel restrictions associatedwith the Wall. This will also limit
the areas of study available to post-secondary students. Subjects such as Law and
Medicine, for example, are only available at a smallnumber of universities.
(e) Effects of the Wall on the CulturalHeritage
333. Cultural heritage is a component of the cultural identity of the Palestinian
community and an integral part of human heritage. The Wall separates hundreds of
archaeological and cultural heritage sites fiom communities in the Occupied
Palestinian Territory, including East Jerusalem. Moreover, few salvage operations
were carried out in the process of construction of the Wall, indicating that no proper
environmental and archaeological damage assessments were conducted before its
construction.
334. During the first phase of the Wall, approximately 230 major archaeological
sites were cut in the Closed Zone, in addition to 1,751 minor sites and cultural
heritage features,such as caves, tombs, cemeteries, sanctuaries,towers, and wine and
grape presses.266The Wall has also enclosed some of the most significant natural
sites, includingthe naturalforest of Umm er-Rihan, south of Jenin.
335. In the southern part of the West Bank, large areas of archaeological sites will
be located to the west of the Wall. In the Ramallah area alone, more than 500 siteswill be situatedto the west of the Wall. Additionally, the proposed eastern route along
the JordanValley will place over 1,000archaeologicalsites and features in the eastern
part of the West Bank which, exceptforthe Jericho area, is under Israeli control.
336. In the Bethlehemdistrict,a largenumber of archaeological sites in Al Khader
and Housan villages have been demolished or annexed to nearby ~ettlements.'~~
Destruction of a number of archaeological sites has already occurred as a result of
construction of the Wall, including a Byzantine archaeological site damaged in
> .
October2003 during constructionof the Wall in OccupiedEast ~erusalern.~~~
337. The continueddirect impactof the Wall on the cultural heritage will include:
destruction of archaeological sites; destruction of natural heritage; destruction of
historical and natural landscape; isolating archaeological sites from their cultural
settings; confiscation of archaeological remains; and disruption of the geographic
integrityof Palestinian area~.'~'
266 Dr. Hamdan Taha, Director General, Department of Antiquities and Cultural Heritage,
Palestinian Ministry of Tourism and Antiquities,The Separation Wall: An Archaeological Atrocity,16
January 2004, p. 1.
267 These include: Kh. Harnmouda, Kh. Qedis, Kh. El-Keneiseh, Kh. Deir Baghel and ancient water
springs such as Ain el-Kalbeh Ain Qadis, Ain et-Taqa and Ain el-Qaniseh in additionto the Qedis
caves and the caves of Daher el-Matarseh. Other archeological sites, including Kh. Ed-Deir,Kh. El-
Aid, Kh. Farash, ASin Faris Ain el-Masayeh Ain Abu Zeid, Ain el-Faqeh, and Ain Abu Kleibehwere
annexed to the settlement of 'Bitar Aleat.' Other sites in the village El-Jaba'a and Wadi Fukiwere
also annexed to the nearby settlement.The archaeological sites of Kh. El-Khamasah have been totally
268aged. Ibid., p. 2.
Khirbet Salah is located east of the town of AbuDis in Jerusalem and features the remainsof
a Byzantine monastery. In construction of the Wall, bulldozerswere sent to the area to begin work
without coordination with the Israeli Archaeologicalthonty (IAA). A substantial part of the sitewas
demolished and levelled, causing irreversibledamage, before work was halted by the IAA. Not enough
time was given for archaeologists to finish work on the site and,after 3 weeks, the sitewas levelled and
the Wall was completed over the site.
26Ibid. p.2.(6) Conclusions
338. The Wall is not built on the Green Line. Practically thentire Wall is built in
the Occupied Palestinian Territory. The Wall divides and isolates Palestinians from
Palestinians and Palestinians from their land. It creates enclaves and fragments the
territorial integrity and contiguityof the Occupied PalestinianTerritory.n addition to
its extensive impact on al1 aspects of Palestinian life in and even beyond the
cornmunities directly affected by the Wall, the Wall regime undermines Palestinian
capacityfor sustainablelivelihood.
339. The Wall is designed to protect and ensure the expansion of Israeli
settlements in the Occupied Palestinian Territory, including in and around East
Jerusalem. In addition to the approved settlementexpansion areas, nearly 80 per cent
of the settler population in the West Bank and East Jerusalem will be located outside
the Wall.
340. The Wall is designed to ensure Israel's permanent control over natural
resources in Occupied Palestinian Territory. The high-quality water sources in the
West Bank have been exploited by Israeli since 1967. Most of Israel's yearly
extractionof fresh water from West Bank aquifers is consumed by settlements.
341. The Wall regime is part of a wider system of road networks, settlement
expansionand infi-astructuralintegrationwith Israel. The scale and nature of the Wall
project entrenchesIsrael's presence in OccupiedPalestinianTerritory.342. The construction of the Wall has already caused permanent damage to the
Occupied Palestinian Territory in terms of land levelling, home demolitions and by
radicallyalteringPalestiniandaily economicand sociallife.[Intentionallyleft blank] Terminologyin SecurityCouncilResolutionssince 1967
Resolution Terminologyused
242 (1967) "territories occupied in the recent conflict"
446 (1979) "the Arab territories occupied by Israel since 1967,including Jerusalem"
"the occupiedArab territories"
452 (1979) "the Arab territories occupied since 1967,includingJerusalem"
"the occupiedArab territories"
465 (1980) "the Arab territories occupied since 1967,includingJerusalem;
"the Arab territories occupied by Israel since 1967,including Jerusalem"
"the Palestinianand otherArab territoriesoccupied since 1967"
"the occupiedterritories"
"the territories under occupation"
476 (1980) "Arab territoriesoccupied by Israel since 1967,including Jerusalem"
478 (1980) "the Palestinian and otherArab territoriesoccupied since June 1967,including Jerusalem"
484 (1980) "the Arab territories occupied by Israel in 1967"
605 (1987) "the Palestinian and other Arab territories occupied by Israel since1967, including
Jerusalem;
"the occupiedterritories;
"under Israeli occupation"
607 (1988) "the occupiedterritories;
"Palestinian andother Arab territoriesoccupied by Israel, since 1967,including Jerusalem"
608 (1988) "the occupiedPalestinian territories"
"the occupiedterritories"
"the Palestinian and other Arab territories occupied by Israel since 1967, including
Jerusalem"
636 (1989) "the occupiedPalestinian territories"
"Palestinian territories, occupied by Israelsince 1967, including Jerusalem, (and to the
other occupiedArab territories)"
641 (1989) "the occupiedPalestinian territories"
"the Palestinianterritories,occupied by Israel since 1967,including Jerusalem"
672 (1990) "al1the territories occupied by Israel since 1967"
681 (1990) "under Israeli occupation"
"the Palestinianterritories occupied by Israel since 1967,including Jerusalem"
"the occupiedterritories"
"al1the territories occupied by Israel since 1967"
694 (1991) "the Palestinianterritories occupied by Israel since 1967,including Jerusalem"
726 (1992) "the occupiedPalestinian territories"
"the Palestinianterritories occupiedby Israelsince 1967,including Jerusalem"
"the occupied territories"
799 (1992) "the territories occupied by Israelince 1967,including Jerusalem"
"the Palestinianterritories occupiedby Israelsince 1967,including Jerusalem"
904 (1994) "the territoriesoccupied by Israel in June 1967,including Jerusalem"
"the occupied territory"
1322(2000) "the territoriesoccupied by Israelsince 1967"
1397 (2002) "Palestine (two-State vision)"
1402(2002) "Palestinian cities"
1435(2002) "Palestinian cities"
1515(2003) "Palestine (two-State vision)" PART D. LEGAL ANALYSIS
Chapter7. ISRAEL IS IN OCCUPATION OF PALESTINIAN
TERRITORY
(1) Introduction
343. The Request for the present Opinion refers to the location of the Wall in
"Occupied Palestinian Territory, including in and around East Jerusalem". The term
'Occupied Palestinian Territory' (OPT)s well accepted in the practice of United
Nations bodies including the General Assembly and the Security Council. It or
similar phrases have been used evernce 1967both by the Security Council and the
General Assembly. This can be seen for example from the Table, opposite, which
records the terminology used in SecurityCouncilresolutions from 1967to date.
344. In this Chapter, certain clarifications will be offered as to the meaning and
content of the term 'Occupied PalestinianTerritory', and itwill be establishedthat the
internationallaw of occupationis applicable to that territory and to Israel as occupier.
In Chapter 8, the content of the applicable international law, including both
internationalhumanitarian lawand internationalan rights law, will be clarified.
345. That Israel has been, and remains, in occupation of Palestinian territory is
internationally uncontroversialThe occupation resulted from the Six Day War
between Israel, Jordan, Syria and Egypt in June 1967.f these States were at the
time and remain High Contracting Parties to theFourth Geneva Convention: seeArticle 2, first sentence. There is no doubt that the 1967 War was an international
armed conflict within the meaning of the Geneva Conventions. During this armed
conflict Israeli armed forces invaded and occupied, intea rlia, the West Bank and the
Gaza Strip, which represented about one-half of the territory that had been allocated
to the Arab State under the partition plan in General Assembly Resolution 181(II) of
1947.~~'Referencehas already been made to these events in Chapter 3 of this Written
Statement.
346. The proper characterization of Israel's current status in respect of this
territory remains that of an occupier. Under international law, an Occupying Power
does not have sovereignty over the territory subject to its occupation. It merely
exercises authority over the territory on a temporary ba~is.'~~ Furthermore, the
essential test is one of actual overall contr01.~~~It does not matter that day-to-day
administration may be exercised by local authorities. Territory once occupied
remains occupied until a definitive withdrawal from that territory, or a definitive,
internationallyacceptablesettlement. Neither of these events has occurred.
347. Al1 States, whether occupying States or third States, are prohibited £rom
obtainingterritory as a result of a threat or use of force. The proposition that title to
territory cannot validly be obtained by force is so fundamental and indisputablethat
elaborate citation of authority is not required before the Court. It follows that the
traditional law on occupation of territory, as embodied in the Fourth Geneva
Conventionof 1949,has been powerfully reinforced bymodern international law.
270 Already in 1948-9Israel had occupied abouthalfof the temtory allocated to the Arab State.
271
272 See in particular Arti4and47 of the FourthGeneva Convention.
SeeArticle42 of the 1907Hague Regulations.(2) The regime ofoccupiedterritory
(a) In general
348. The law of occupation comprises rules of customary international law
embodied in particular in the 1907 Hague Regulations and the Fourth Geneva
Convention. It is widely accepted that these instruments reflect customary
international law and are not limitedto relationships as between Statesparties only.273
But even as a treaty, the Fourth Geneva Convention is applicable in its own terms to
the situation created in 1967. The Convention is stipulated, in Article 2,to apply to
"al1cases of declared war or of any other armed conflictwhich may arise between two
or more of the High Contracting Parties." In 1967, as a result of an international
armed conflict between parties to the Convention,Israel occupiedterritory which was
not its own. It remains in occupation, and there has been no internationally accepted
settlement concerning the territory. The resulting legal situation, opposable erga
omnes by reason of the customaryinternational law status of the relevant rules, is also
opposableto al1the StatesParties to the Fourth Geneva Convention,consisting of 190
States, the vast majority of the members of the international community. In fact, as
demonstrated below, this situation has been expressly recognized by the Conference
of the High ContractingParties to the Fourth Geneva Convention. Correspondinglyit
is a legal situation of whichal1United Nations organs can take notice and on the basis
of which they shouldact.
273
Legality of the Threat or Use of Nuclear Weapons.Advisory Opinion, 8 July 1I.C.J.
Reports 1996,p.266, at 256 (para. 75), 257 (para. 79), 258 (para. 82).349. The definition of occupation in international humanitarian law depends
essentially on questionsof fact. According to the definition in Article 42 of the 1907
Hague Regulations:
"Territory is considered occupied when it is actuallyplaced under the
authority of the hostile army. The occupation extends only to the
territory where such authority has been established and can be
exercised." (emphasisadded)
350. The litmus test to determine if territory is occupied is whether the territory is
under the authority of a hostile power. The underlying assumption is that the hostile
power has 'effective control' over the territoryin question. In other words, whether a
hostile power is exercisingeffectivecontrol is a question of fact. Article 42 othenvise
makes no statement about the status of occupied territory. In particular, it does not
speak about possible legal claims to the territory or about the legality of the foreign
power's presence on the territory (for example, in the context of an asserted right of
self-defence). Such questions are irrelevantto the question of whether the territory is
occupied.
351. An Occupying Power may not abandon or neglect its obligationstowards the
civilian population under occupation by choosing not to exercise 'effective control'
when it is militarily capable of doing so. As the Special Rapporteur of the
Commission on Human Rights on the situation in the Palestinian territories occupied
by Israel since 1967has noted:
"...[Olccupation is concerned with the interests of the population of
an occupiedterritory rather than those of a displaced sovereign... The
test for the applicationof the legal regime of occupation is not whether
the occupying power fails to exercise effective control over the
territory, but whether it has the ability to exercise such power, a principle affirmed by the United StatesMilitary Tribunal at Nuremberg
in reList and others and others (The Hostages Case) in 1948."~~~
352. In the Hostages Case, the Military Tribunal at Nuremberg took the position
that even temporary territorial control by partisans would not necessarily remove the
state of occupation:
"While it istrue that the partisanswere able to control sectionsof these
countries at various times, it is established that the Germans could at
any time they desired assume physical control of any part of the
country. The control of the resistance forces was temporary only and
not such as would deprive the German armed forces of its status of an
353. The existence of 'effective control' by the Occupying Power is thus
measured by its actual ability to assume the responsibilities that attach to an
OccupyingPower, namely the ability to issue and enforce directivesto the inhabitants
of the territory, and not by its willingnessto do so.
354. The legal status of occupation is not excluded by the persistence of armed
resistance by the occupied population. The major military manuals since 1949
provide strong evidence in support of this proposition. For example, the British
Manual of MilitaryLaw provides:
"Occupation does not become invalid because some of the inhabitants
are in a state of rebellion, or through occasional successes of guerrilla
bands or 'resistance' fighters. Even a temporarily successful rebellion
is not sufficient to interpret or terminate occupation, provided that the
authority of the legitimate government is not effectively re-established
and that the Occupantsuppressesthe rebellion at once."276
274
Report of the Special Rapporteur of the Commission on Human Rights on the situation in the
Palestinian temtories occupied by Israel since 1967, A/56/440, para. 7, Annex 1 in Annex Volume 2
275ompanying this Written Statement.
United States v.Wilhelm List et al, 11 Trial of War Criminals Before the Nuremberg
Militaly Tribunals, 1230, 1243(1948).Similarly,the UnitedStates Field Manual states:
"Occupation, to be effective, must be maintained.. . Nor does the
existenceof a rebellion or the activity of guerrilla para-military units of
itself causethe occupation to cease, provided the occupantcould at any
time it desired assume physical control of any part of the territory. If,
however, the power of the occupant is effectively displaced for any
length of time, itspositiontowards the inhabitants is the same as before
oc~u~ation.~~~~~
355. By the time that the Hague Regulationswere adopted, it was already a clearly
established principle that military occupation of territory as a result of war did not
confer sovereignty upon the Occupying ~ower.~~'The two key principles governing
the regime of belligerent occupation were that occupation was a temporary state of
affairs and that no unilateral change in the status of the territory by the occupier was
permitted. The International Military Tribunal at Nuremberg held that even where
the State whose territory was occupiedhad been completelyovenvhelmed, annexation
remained unlawful and did not transfer title so long as the OccupyingPower remained
at war with the allies of the State ~oncerned.~~~Purported annexations of occupied
territory were expresslyprohibited.
356. These principles remain applicable to the regime of occupation today, with
the proviso that the triggering event is occupation in the context of an international
armed conflict, whether or not a declared war. A purported annexation of occupied
territory by an Occupying Power will be ineffective to alter the status of the territory
or its inhabitants, who remain subject to the law of occupation. According to Article
47 ofthe Fourth Geneva Convention:
276
277 TheLaw of Waron Land, Part IIIManual of Military Law(TheWar Office, 1958) $509.
278 TheLaw ofLand Warfare,FieldManual P.S. Departmentof the Amy, July 1956)$360.
279 Oppenheim,InternationalLaw (6thed, London 1944)pp. 432-4.
Cmd. 6964,65. "Protected persons who are in occupied territory shall not be deprived,
in any case or in any manner whatsoever, of the benefits of the present
Convention by any change introduced, as the result of the occupation
of a territory, into the institutions or government of the said territory,
nor by any agreement concluded between the authorities of the
occupiedterritory and the OccupyingPower, nor by any annexation by
the latter of the whole or part of the occupied territory."
357. The ICRC's Commentaryto Article 47 states:
"occupation as a result of war, while representing actual possession to al1
appearances,cannot imply any right whatsoever to dispose of territory. As
long as hostilities continue the Occupying Power cannot therefore annex
the occupied territory, even if it occupies the whole of the territory
concemed. A decision on that point can only be reached in the peace
treaty. That is a universally recognized rule which is endorsed by jurists
and confirmed by numerous rulings of international and national
coul-t~.~~~~~
358. Moreover, certain conduct usually associated with annexation of territory -
in particular the direct or indirect transfer to occupied territory of the occupier's
civilian population, or the transfer of part of the population from occupied territory -
constitutesa war crime.281
(b) Applicationof the renime of occupationto Palestine
359. The international law regime of occupation applies afortiori to a mandated
territory whose people have not achieved self-determination and which has been
occupiedby a State as a result of an internationalarmed conflict. Such a conflict does
not terminate the mandated status of the territ~ry.~~~It does not put an end to the
280 ICRC (ed. Pictet), Commentary.IV Geneva Convention relative to theProtection of Civilian
Persons in TimeofWar(Geneva, 1958) 275.
281 See Additional Protocol1,Art. 85 (4)(a); see also Rome Statute of the International Criminal
Court, 17July 1998,Art. 8(2)(a)(iv), (b)(viii).
282 This was confirmed by this Court in the series of opinions from International Status of
South-West Africa, I.C.J. Reports 1950, p. 128 to Legal Consequencesfor States of the Continuedrights of the people c~ncerned.~~~It certainly does not confer sovereignty on the
Occupying Power. The regime of occupation under international law is applicable to
such a territory until a legitimate settlement is achieved, endorsed by the United
Nations, and accepted by the internationalcommunity.
360. In the Namibia this Court was asked to advise the Security
Council of the legal consequences of South Africa7scontinuedpresence inNamibia in
violation of Security Council Resolution 276 (1970). The Court affirmed the
principle of non-annexation, as one of the two principles of paramount importance
underlying the mandates system under Article 22 of the Covenant of the League of
Nations. RegardingArticle 22, the Court said:
"...the Government of South Africa has dwelt at some length on the
negotiations which precededthe adoptionof the finalversion of Article
22 of the League Covenant, and has suggested that they lead to a
different reading of its provisions. Be that as it may, the final outcome
of the negotiations, however difficult an achievement, was a rejection
of the notion of annexation. It cannot tenably be argued that the clear
meaning of the mandate institution could be ignored by placing upon
the explicit provisions embodying its principles a construction at
variance with its object and purpose."285
361. The principle that the territory occupied by Israel in 1967 may not be
unilaterally annexed, or its status othenvise unilaterally changed, has been accepted
and acted on by the international community as a whole. In particular, in 1967, the
SecurityCounciladoptedResolution 242 (1967):
Presence of SouthAfrica in Namibia (South WestAfrica) Notwithstanding SecuCouncil Resolution
276 (1970),ICJ Reports 1971,p.6.
283 Ibid. And see United Nations Charter, Article 80.
284 Legal Consequencesfor Statesof the Continued Presenceof South Africa in Namibia (South
285stAfrica) Notwithstanding Security CouncilResolution 27670),I.C.J.Reports 1971,p. 6.
Ibid., p.30. "The SecurityCouncil,
Expressing its continuing concem with the grave situation in the
MiddleEast,
Emphasizing the inadmissibility of the acquisition of territory by war
and the need to work for a just and lasting peace in which every State
in the area can live in security,
Emphasizingfurther that al1Member States in their acceptance of the
Charter of the United Nations have undertaken a commitment to act in
accordancewith Article 2 of the Charter,
1. Afzrms that the fulfilment of Charter principles requires the
establishment of a just and lasting peace in the Middle East which
shouldincludethe applicationof both the followingprinciples:
(i) Withdrawal of Israel armed forces fiom territories occupied in the
recent conflict;
(ii) Termination of al1claims or states of belligerency and respect for
and acknowledgment of the sovereignty, territorial integrity and
political independence of every State in the area and their right to live
in peace within secure and recognized boundaries free from threats or
actsof force;
362. On 30 July 1980 Israel attempted to annex East Jerusalem by enacting the
'Basic Law: Jerusalem, Capital of Israel, 30 July 1980'. This act elicited the
condemnation of the Security Council in numerous resolutions, commencing with
Resolution476 (1980), in which the SecurityCouncilresolved:
"Having considered the letter of 28 May 1980 fiom the representative
of Pakistan, the current Chairman of the Organization of the Islamic
Conference,as containedin document SI13966 of 28 May 1980,
ReafJirmingthat acquisitionof territoryby force is inadmissible,
Bearing in mind the specific status of Jerusalem and, in particular, the
need for protection and preservation of the unique spiritual and
religious dimensionof the Holy Places in the city,
Reaffirming its resolutions relevant to the character and status of the
Holy City of Jerusalem,in particular resolutions252 (1968) of 21 May
1968, 267 (1969) of 3 July 1969, 271 (1969) of 15 September 1969,
298 (1971) of 25 September 1971and 465 (1980)of 1March 1980,
Recalling the Fourth Geneva Conventionof 12August 1949relative to
the Protectionof CivilianPersonsin Time of War,
Deploring the persistence of Israel, in changingthe physical character,
demographic composition, institutional structure and the status of the
Holy City of Jerusalem,
Gravely concerned over the legislative steps initiated in the Israeli
Knesset with the aim of changing the character and status of the Holy
City of Jerusalem, 1. Reafirms the overriding necessity to end the prolonged occupation
of Arab territoriesoccupiedby Israel since 1967,includingJerusalem;
2. Strongly deplores the continued refusa1 of Israel, the occupying
Power, to complywith the relevant resolutions of the Security Council
and the GeneralAssembly;
3. ReconJirms that al1 legislative and administrative measures and
actionstakenby Israel,the occupyingPower, which purport to alterthe
character and status of the Holy City of Jerusalem have no legal
validity and constitute a flagrant violation of the Fourth Geneva
Convention relative to the Protection of Civilian Persons in Time of
War and also constitute a serious obstruction to achieving a
comprehensive, just and lastingpeace in the Middle East;
4. Reiterates that al1such measures which have altered the geographic,
demographic and historical character and status of the Holy City of
Jerusalem are nul1and void and must be rescinded in cornpliancewith
the relevantresolutionsof the SecurityCouncil;
5. Urgentlycalls on Israel, the occupying Power, to abide by this and
previous Security Council resolutions and to desist forthwith from
persisting in the policy and measures affecting the character and status
of the Holy city of Jerusalem;
6. Reafirms its determinationin the event of non-cornpliance byIsrael
with this resolution, to examine practical ways and means in
accordance with relevant provisions of the Charter of the United
Nations to securethe full implementationof this resolution."
363. That resolution was followed by Resolution 478 (1980), in the Security
Council
"Reafirming again that the acquisition of territory by force is
inadmissible,
Deeply concerned over the enactment of a "basic law" in the Israeli
Knesset proclaiming a change in the character and status of the Holy
City of Jerusalem, with its implications for peace and security,
Noting that Israel has not complied with resolution 476 (1980),
ReafJimzingits determinationto examinepractical ways and means, in
accordance with the relevant provisions of the Charter of the United
Nations, to securethe full implementationof its resolution 476 (1980),
in the eventof non-compliance byIsrael,
1. Censuresin the strongestterms the enactmentby Israel of the "basic
law" on Jerusalem and the refusal to comply with relevant Security
Councilresolutions; 2. Afirms that the enactment of the "basic law" by Israel constitutes a
violation of international law and does not affect the continued
application of the Geneva Convention relative to the Protection of
Civilian Personsin Time of War, of 12August 1949,in the Palestinian
and other Arab territories occupied since June 1967, including
Jerusalem;
3. Determines that al1 legislative and administrative measures and
actions taken by Israel, the occupying Power, which have altered or
purport to alter the character and status of the Holy City of Jerusalem,
and in particular the recent "basic law" on Jerusalem, are nul1and void
and must berescinded forthwith;
4. Afimzs also that this action constitutes a serious obstruction to
achieving a comprehensive,just and lasting peace in the Middle East;
5. Decides not to recognize the "basic law" and such other actions by
Israel that, as a result of this law, seek to alter the character and status
of Jerusalemand calls upon:
(a) Al1Member Statesto acceptthis decision;
(b) Those Statesthat have established diplomaticmissions at Jerusalem
to withdraw suchmissions from the Holy City."
364. Israel remains in occupation of the West Bank including East Jerusalem, and
the Gaza Strip. While there has been a partial transfer of certain powers and
responsibilities from Israel to the Palestinian Authority (the precisetures of which
need not be examined bythe Court) in respect of some parts of Palestinian territory,
Israel remains in overall control of the Occupied PalestinianTerritory, including East
Jerusalem. According to the UN Special Rapporteur on the Occupied Palestinian
Territory:
"The Oslo Accords leave Israel with the ultimate legal control over al1
of the OPT and the fact that for political reasons it has generally
chosen not to exercise this control over the 'A' zones, when it
undoubtedly has the military capacity to do so (as illustrated by the
Israeli military incursion into the 'A' zone town of Beit Jala in August
2001), cannot relieve Israel of its responsibilities as an occupying
power.y7286365. Nor does Palestinianresistance against the occupyingpower removethe legal
status of 'occupation7 in the Occupied Palestinian Territory. As long as Israel
maintains its effective control over Palestinian territory, it is under occupation in
international law. Important consequences flow in respect of the applicable law,
which are discussedin the next Chapter.
(3) The Request does not requirethe Court to determinethe boundariesof
Palestine
366. The Termsof the Request forthe advisory opinion are the following:
"What are the legal consequences arising from the construction of the
wall being built by Israel, the occupying power, in the Occupied
Palestinian Territory, including in and around East Jerusalem, as
described in the report of the Secretary-General,considering the rules
and principles of international law, including the Fourth Geneva
Convention of 1949 and relevant Security Council and General
Assembly resolutions?"
367. In order to answer this question the Court needs only to take account of the
fact that a wall is being built by Israel in the OccupiedPalestinianTerritory, including
in and around East Jerusalem. It need not determine where the precise boundaries of
the Occupied Palestinian Territory lie. The essential facts, on which the Court can
securely rely, are simple: wherever theprecise boundaries of Palestine may lie, it is
universally accepted (including by Israel) that the greater part of the Wall has been
built by Israel well inside Palestinian territory. This position is graphically
demonstratedin the attachedmaps.287It cannot admit of any doubt.
- pp
286 Report of the Special Rapporteurof the Commission onHuman Rights on the situationin the
Palestinian territories occupied by Israel since 1967, Ai561440,para. 7, Annex 1 in Annex Volume2
accompanyingthis Written Statement. (a) The division of 'Mandated Palestine'
368. The Court has already been provided with a description of the historical
background of Palestinian territory in Chapter 3. Only a brief recapitulation is
necessary.
369. Palestine was in 1914 an undivided part of the Ottoman Empire without
separate status. It was occupied by British troops in 1917and came to be disposed of
as part of the post-war settlement.
370. The Mandate for Palestine was established in the aftermath of the Treaty of
Versailles. Article 22 of the Covenant of the League of Nations established the basic
parameters of the Mandate system. Under this system Palestine was an "A class
mandate. The League Council approved the terms of the British mandate on 24 July
1922.~~'It came into force on 29 September 1923. The territorial basis of Palestine
under the Mandate was subject to an amendment approved in November 1922which
authorised Great Britain to divide the territory into two, excluding what was then
referred to as Transjordan (now the Hashemite Kingdom of Jordan). This was
effected in 1928,with League of Nations approval. Jordan's full independence was
achieved in a Treaty of Alliance with the United Kingdom signed on 22 March 1946,
within the territories delineated in 1928. That situation has been recognised by Israel
287 SeeAnnexvolume 1
288 LNOJvo1.3,NO8 Pt II (Augüst 1922) 798- 802,817 -825.on numerous occasions, including in 1994.~'~AS a result, Mandated Palestine was
limitedto the territoriesto the west of the Jordan River.
On 18February 1947,Britain announced that it was referring the question of
371.
Palestineto the UnitedNations and would withdraw its administrationof the Mandate
by 1August 1949. On29 November 1947,the GeneralAssembly adoptedResolution
181 (II). This Resolution incorporated a plan for the partition of Palestine intotwo
states (one Arab and one Jewish), for economic union between them, and for the
internationalizationof Jerusalem. Boundaries were set out in the Resolution for 'the
Arab State', 'the Jewish State' and Jerusalem.
372. Great Britain withdrew from Palestine at midnight on 14-15 May 1948.
Hostilities broke out, leading to Armistice Agreements in 1949. Israel was shortly
aftenvardsadmittedto the United Nations.
373. It has never been disputed that Israel in 1949 did not include areas of the
West Bank, or East Jerusalem,or the Gaza Strip. That remains the situation. Nothing
that has happened since 1949has given any internationalrecognitionto any extension
of Israeli territory to cover any of these areas. It results that Israel is in occupation of
al1the areasbeyond the ceasefireline of 1949(the so-calledGreen Line).
374. The principle of two States (one Arab and one Jewish) in Palestine has
remained in place since Resolution 181 (II). This is evident in the principal
agreementsconcludedbetween the Palestine Liberation Organisationand Israel since
289 Israel-Jordan, Treaty of Peace, 26 October 1994, Art. 3(2): 2042 United Nations Treaty
1681993and in resolutions of the General Assembly and Security Council adopted since
GeneralAssemblyResolution 181(II).
375. Although certain developments have occurred in the territory first occupied
in 1967, the fact is that Israel remains in overall control of this territory and Israeli
forces remainin occupationof the West Bank, includingEast Jerusalem, and the Gaza
Strip. These areas are together referred to as the 'Occupied Palestinian Territory',
because the territory is not part of the territory of the State of Israel; it is territory of
the Palestinian people, destined for a Palestinian State whose right to exist was
recognizedby Resolution 181(II), and has been widely recognised ever since.
(b) Recognitionof the Division of Mandated Palestine: Ameements
between Israel and Palestine
376. As noted in Chapter 3, the principal agreements concluded between the
Palestine LiberationOrganisation and Israel in the Middle East Peace Process since
1993are as follows:
Exchangeof correspondence(Arafat-Rabin),9 September 1993;290
Israel-PalestineLiberation Organisation, Declaration of Principles on Interim-
Self Government Arrangements, 13 September 1993 (Declaration of
~rinci~les);~~'
Israel-PalestineLiberation Organisation,Agreementon the Gaza Strip and the
JerichoArea, 4 May 1994;292
Series 395.
290 Text in (1992-47Palestine YBZL230.
291 (1993) 32 ILM 1525. Israel-Palestine Liberation Organisation, Agreement on Preparatory Powers
and Responsibilities,29 August 1994;293
Israeli-Palestinian Interim Agreement on the West Bank and the Gaza Strip,
28 September 1995;~~~
Note forthe Record (Ross-Netanyahu-Arafat), 17January 1997;295
Israel-Palestine Liberation Organisation, Protocol concerning the
Redeploymentin Hebron, 17January 1997;296
Israel-Palestine Liberation Organisation, Wye River Memorandum,
23 October 1998;~~~
Israel-Palestine Liberation Organisation, Shann El-Sheikh Memorandum,
4 September 1999.298
377. The 1993 Declaration of Principles commences with Article 1 in the
followingterms:
"The aim of the Israeli-Palestinian negotiations within the current
Middle East peace process is, among other things, to establish a
Palestinian Interim Self-Government Authority, the elected Council
(the "Council"), for the Palestinian people in the West Bank and the
Gaza Strip,for a transitionalperiod not exceeding fiveyears, leadingto
a permanent settlementbased on Security CouncilResolutions242 and
338. It is understoodthat the interim arrangements are an integral part
of the whole peace process and that the negotiations on the permanent
status will lead to the implementationof Security Council Resolutions
242 and 338."299
(1994) 33 ILM 622.
(1995) 34 ILM 455.
(1997) 36 ILM 551.
(1997) 36 ILM 655.
(1997) 36 ILM650.
(1998) 37 ILM 1251.
(1999) 38 ILM 1465.
(1993) 32 ILM 1527.378. The Interim Agreement on the West Bank and the Gaza Strip included a
provision onterritory in the followingterms:
"Article XI
Land
1. The two sides view the West Bank and the Gaza Strip as a single
territorial unit, thentegrity and status of which will be preserved
during the interim period."
379. The Wye River Memorandum and the Sharm El-Sheikh Memorandum both
outlined further steps to be taken by the parties to implement the Interim Agreement.
Both of these Memoranda adopted the categorization of land used in the Interim
Agreement, referring to Areas 'A', 'B', and 'C' todescribe Palestinian territory,
which was explainedbriefly in preceding chaptersof this Written Statement.
380. The most recent text conceming the peace process is the "Performance Based
Road Map to a Permanent Two-State Solutionto the Israeli-Palestinian Conflict" (the
'Road ~a~').~" This instrument does not affect the status of territory or change any
borders.
381. It is evident from this review that as between Israel and Palestine, it is
acceptedthat MandatedPalestine was divided into Israeli and Palestinian areas.
300 A Performance-Based Roadmap to a Permanent Two-State Solutiothe Israeli-Palestinian
Conflict'UN doc Sl20031529.This instrument was endorsed by the Security Councilon 19November
2003 inResolution 1515(2003): doc SIRES11515(2003). (c) Recognition of the Division of Mandated Palestine: ThePosition of the
UnitedNations
382. The notion of two territorial entities emerging from 'Mandated Palestine' is
evident in GeneralAssembly and Security Council resolutions on Palestine.
383. The General Assembly has adopted numerous resolutions on Palestine since
its adoption of Resolution 181 (II) in 1947. A standard feature of the General
Assembly's resolutions is the reference to the Armistice Line of 1949 (the 'Green
Line') when referringto events taking place in the OccupiedPalestinianTerritory.
384. For example, in Resolution AIES-10114 of 8 December 2003 the General
Assembly resolved that it was:
"Gravely concemed at the commencement and continuation of
construction by Israel, the occupyingpower, of a wall in the Occupied
Palestinian Territory,including in and around East Jerusalem,which is
in departure from the Armistice Line of 1949 (Green Line) and which
has involved the confiscation and destruction of Palestinian land and
resources, the disruptionof the lives of thousands of protectedcivilians
and the de facto annexation of large areas of territory, and underlining
the unanimous opposition by the intemational cornmunity to the
constructionofthat wall."
385. In its earlier resolution, ARS-10113 of 21 October 2003, the General
Assembly demands that Israel stop and reverse the construction of the Wall in the
Occupied PalestinianTerritory, including in and around East Jerusalem, of which the
General Assembly said:
"[ ...] is in departure of [sict]e Armistice Line of 1949 and is in
contradictionto relevantprovisions of international la^."^^'
301 AIES-10/13,21 October 2003.386. The notion of two territorial entities emerging fiom 'Mandated Palestine' has
been affirmed by the SecurityCouncil. The Security Council has over a long period of
time endorsed a vision of "two States living side by side with recognized borders" (to
adoptthe language of Resolution 1397 (2002)) in the MandatedPalestine. This vision
is seen most recently in Resolution 1515 (2003) in which the Security Council
endorsedthe Road Map in the followingterms:
"The Securig Council,
Recalling al1its previous relevant resolutions, in particular resolutions
242 (1967), 338 (1973), 1397(2002)plus the Madridprinciples,
Expressing its grave concern at the continuation of the tragic and
violent events in the Middle East,
Reiterating the demand for an imrnediate cessation of al1 acts of
violence, including al1acts of terrorism, provocation, incitement and
destruction,
ReafJirming its vision of a region where two States, Israel and
Palestine,live sideby sidewithin secure and recognized borders,
Emphasizing the need to achieve a comprehensive, just and lasting
peace in the Middle East, including the Israeli-Syrian and Israeli-
Lebanesetracks,
Welcomingand encouraging the diplomatic efforts of the international
Quartet and others,
1. Endorses the Quartet Performance-based Roadmap to a Permanent
Two-StateSolutionto the Israeli-PalestinianConflict (Sl20031529);
2. Calls on the parties to fulfil their obligations under the Roadmap in
cooperation with the Quartet and to achieve the vision of two States
living sideby side in peace and security;
3.Decides to remain seizedof the matter."
(d) Internationalrecognition that the Palestinianterritory is occupied
within themeanina of the Fourth Geneva Convention
387. It can safely be asserted that practically every State in the world - with the
exception of Israel - recognises that Palestinian territory is occupied territory within
the meaning of the Fourth Geneva Convention.388. Since the commencementof Israel's occupation of the Occupied Palestinian
Territory, the United Nations General Assembly and Security Council have resolved
on numerous occasionsthat the Fourth Geneva Convention is applicable to the OPT.
The followingresolutionsof the SecurityCouncil are to this effect:
SCResolution 13UN,SCOR,55thSess.,UN Doc SIRES156(2000)
SC Resolution9UN,SCOR,49thSess.UN Doc SIRES150(1994)
SC Resolution799,UN SCOR,47" SeUN.Doc SIRES148 (1992)
SCResolution72UN SCOR,47thSessUN Doc SIRES148(1992)
SCResolution694,UN SCOR,46thSess.,UN Doc SIRES147(1991)
SCResolution68UN SCOR,45thSess.,UN Doc SIRES146(1990)
SC Resolution673,UN SCOR,45thSeUN.Doc SIRES146 (1990
SCResolution672,UN SCOR,45thSesUN,Doc SIRES146(1990)
SC Resolution UN1,SCOR,44thSess.,UN Doc SIRES145(1989)
SCResolution63UN SCOR,44thSess.,UN Doc SIRES145(1989)
SCResolution60UN SCOR,43rdSess.,UN Doc SIRES144(1988)
SCResolution60UN SCOR, 43rdSessUN Doc SIRES144(1988)
SCResolution 605,UN SCOR,42ndSess.,UN Doc SIRES143(1987)
SCResolution59UN SCOR,42ndSess.,UN Doc SIRES142(1986)
SC Resolution 484,UN SCOR,35thSUNsDoc SIRES136(1980)
SC Resolution4UN, SCOR,35thSessUN Doc SIRES136(1980)
SCResolution47UN SCOR,35thSessUN Doc SIRES136(1980)
SC Resolution47UN SCOR,35thSess.,UN Doc SIRES136(1980)
SC Resolution469, UN SCOR,35thSUNsDoc SIRES136(1980)
SC Resolution46UN SCOR,35thSessUN Doc SIRES136(1980)
SCResolution465, UN SCOR,35thSeUN.Doc SIRES136(1980) SCResolution452, UN SCOR, 34thSess., UN Doc SIRES135(1979)
SCResolution446, UN SCOR, 34thSess., UN Doc SIRES135(1979)
SCResolution 271, UN SCOR, 24thSess., UN Doc S/RES/24/Rev.1(1969)
389. Numerous resolutions of the General Assembly have likewise affirmed the
application of theFourth Geneva Convention in the Occupied Palestinian Territory
and demanded Israel to accept the Convention's dejure application in the Occupied
Palestinian Territory. For example, the most recent resolution, voted for by an
ovenvhelming majority of States,with only nine Statesvoting against,provides:
"The GeneralAssembly,
Recalling its relevantresolutions,
Bearing in mind the relevant resolutions of the Security Council,
Recalling the Regulations Annexed to the Hague Convention IV of
1907, the Geneva Convention relative to the Protection of Civilian
Persons in Time of War, of 12August 1949,and relevant provisions of
customarylaw, including those codified in Protocol 1Additional to the
Geneva Conventions,
Having considered the reports of the Special Cornmittee to
Investigate Israeli Practices Affecting the Human Rights of the
Palestinian People and Other Arabs of the Occupied Territories and the
relevant reports of the Secretary-General,
Considering that the promotion of respect for the obligations arising
from the Charter of the United Nations and other instrumentsand rules
of international law is among the basic purposes and principles of the
UnitedNations,
Noting the convening of the meeting of experts of High Contracting
Parties to the Geneva Convention relative to the Protection of Civilian
Persons in Time of War, of 12August 1949, at Geneva fiom 27 to 29
October 1998, at the initiative of the Governmentof Switzerlandin its
capacity as the depositary of the Convention, concerning problems of
application of the Conventionin general and, in particular, in occupied
tenitories, Noting also the convening for the first time, on 15 July 1999, of a
Conference of High Contracting Parties to the Fourth Geneva
Convention, as recommended by the General Assembly in its
resolution ES-1016 of 9 February 1999, on measures to enforce the
Convention in the Occupied Palestinian Territory, including East
Jerusalem, and to ensure respect thereof in accordance with article 1
cornrnonto the four Geneva Conventions, and aware of the statement
adoptedbythe Conference,
Welcoming the reconvening of the Conference of High Contracting
Parties to the Fourth Geneva Convention on 5 December 2001 in
Genevaand stressing the importanceof the Declaration adopted by the
Conference, and underlining the need for the parties to follow up the
implementationof the Declaration,
Welcoming and encouraging the initiatives by States parties to the
Convention, both individually and collectively, according to article 1
commonto the four Geneva Conventions,aimed at ensuring respect for
the Convention,
Stressing that Israel, the occupying Power, should comply strictly
with its obligations under international law, including international
humanitarianlaw,
1. ReafJirms that the Geneva Convention relative to the Protection of
Civilian Persons in Time of War, of 12 August 1949, is applicable to
the OccupiedPalestinianTerritory,includingEast Jerusalem, and other
Arab territories occupiedby Israel since 1967;
2. Demands that Israel accept the dejure applicability of the Convention
in the Occupied Palestinian Territory, including East Jerusalem, and
otherArab territories occupied byIsrael since 1967,and that it comply
scrupulouslywith the provisionsof the Convention;
3. Calls upon al1 High Contracting Parties to the Convention, in
accordancewith article 1 common to the four Geneva Conventions,to
continue to exert al1 efforts to ensure respect for its provisions by
Israel, the occupying Power, in the Occupied Palestinian Territory,
including East Jerusalem, and other Arab territories occupied by Israel
since 1967;
4. Reiterates the need for speedy implementation of the relevant
recommendations contained in its resolutions of the tenth emergency
special sessionwith regard to ensuringrespect by Israel, the occupying
Power,for the provisionsof the Convention; 5. Requests the Secretary-General to report to the General Assembly at its
fifty-ninth session on the implementation of the present resol~tion."~'~
390. Other United Nations bodies share this view: for instance, the United Nations
Special Committee to Investigate Israeli Practices Affecting the Human Rights of the
Palestinian People and other Arabs of the Occupied ~erritories~'~and the Special
Rapporteur for the Occupied Temtories appointedby the United Nations Commission
on Human ~i~hts.~'~
391. Particularly strong evidence of this is provided in the Declaration of High
Contracting Parties to the Fourth Geneva Convention of 5 December 2001.~'~ The
Declaration reflects "the common understanding reached by the participating High
Contracting Parties to the reconvened Conference of High Contracting Parties to the
Fourth Geneva Convention." The Declaration, inter alia:
reaffirmed "the applicability of the Fourth Geneva Convention to the
OccupiedPalestinianTerritory,includingEast Jerusalem" (paras. 1, 3);
called on "al1parties, directly involved in the conflict or not, to respect and to
ensure respect forthe Geneva Conventionsin al1circumstances" (para. 4);
302 GA Res 58/97,UN GAOR, 5gihSess., UN Doc AiRESl58197adopted on 9 December 2003.
Only six states voted against the resolution: Israel, Marshall Islands, Federated States of Micronesia,
Nauru, Palau, United States of America. Additional resolutions of the United Nations General
Assembly to this effectinclude the following: GARes 571125,UN GOAR 571hSess., GA Res 561204,
UN GAOR, 56" Sess., UN Doc Ai56149(2001); GA Res ES-1018,UN GOAR, 56fi Sess., UN Doc
A.ES-1018(2001); GA Res 56160,UN GOAR, 56'hSess., UN Doc A 56/49 (2001); GA Res 551131,
UN GOAR, 55&Sess., UN Doc A155149(2000); GA Res 54/77, UN GOAR, 54'hSess., UN Doc
Al54149(1999); GA Res 53/54,UN GOAR, 53d Sess., UN Doc Ai53149(1998); GA Res 52/65, UN
GOAR, 52d Sess., UN Doc Ai53149 (1997); GA Res 421160 C, UN GOAR, 52d Sess., UN Doc
Al42149(1987); GA Res32191,UNGOAR, 32d Sess., UN Doc Ai32145(1977); GA Res 2252 (ES-V),
UN GOAR,UN Doc Al6798 (1967).
303 The Reports of the Special Committee can be seen in UN Doc Al571207 and UN Doc
3047/421.
Report of the SpecialRapporteurof the Commission onHuman Rights on the situation in the
Palestinian temtories occupiedby Israel since 1967,Al561440,paragraphs 7 and 8, Annex 1in Annex
Volume 2 accompanyingthisWntten Statement.
305 This is reprinted as Annex 11 to this Written Statement and Secretary-General's Dossier
no. 67. stressed that "the Fourth Geneva Convention, which takes fully into account
imperative military necessity, has to be respected in al1 circumstances"
(para. 5)
called on "the Occupying Power [i.e., Israel] to fülly and effectively respect
the Fourth Geneva Convention in the Occupied Palestinian Territory,
includingEast Jerusalem,and to refrain fiom perpetrating any violation of the
Convention" (para. 12).
392. In accordancewith Article 31(3)(b) of the Vienna Convention on the Law of
Treatiesof 1969,in interpretinga treaty there shallbe taken into account:
"any subsequent agreement between the parties regarding the
interpretationof the treaty or the applicationof its provisions;".
The Declaration of 5 December 2001 amounts to an authentic interpretation of the
Fourth Geneva Convention, and an authentic and compelling application of the
requirements of the Convention to the Occupied Palestinian Territory. It is
respectfully submitted that it should be given strong, indeed decisive, weight by this
Court. This is particularly so when it is supported and corroborated by the
InternationalCommitteeof the Red Cross, which has repeatedly made it clear that the
Fourth GenevaConventionis applicableto the OccupiedPalestinian~erritory.~~~
306
See, e.g., International Committee of the Red Cross, Statementto the Conference of High
Contracting Parties to theFourth Geneva Convention, Geneva,5 December 2001,InternationalReview
ofthe Red Cross, vol. 84, No. 847, September 2002, pp. 692-695; reprinted as A11ein Annex
Volume 2.(4) Conclusion
393. To summarize,for the reasons given above, it is universally acceptedthat the
Palestinian territory is occupied territory as a matter of customary international law
and within the meaning of the Fourth Geneva Convention. The Court need do no
more than identiQ the legal consequences that arise from such parts of the Wall - by
far the largest proportion of it - as have been built by Israel within Palestinian (rather
than Israeli)territory. Chapter8. ISRAEL IS BOUND BY INTERNATIONAL
HUMANITARIANLAWAND INTERNATIONAL HUMAN RIGHTS LAW IN
RESPECTOF ITS CONDUCTIN OCCUPIEDPALESTINIAN TERRITORY
(1) Introduction
394. The applicable law governing Israel's rights and duties in the Occupied
Palestinian Territory, includingEast Jerusalem,oth international humanitarianlaw
and internationaluman rights law. Israel has previously disputed the application of
each ofthese aspects of international law to the Occupied Palestinian Territory. The
next two sections outline the reasons whyese laws are applicable in the Occupied
PalestinianTerritory.
395. Before huning to these issues, a proviso is necessary. Israel's rights in
relation to the construction and operation of the Walle no more extensive than
those of an Occupying Power. There is, indeed, a question whether Israel can claim
even those rights. The Geneva Conventions plainly intended that occupations should
be temporary, and the generally-accepted view that occupations should cease once
hostilitieshave ceased, or very soon thereafter. Itwas envisaged that occupation
should be a long-term situation or that states should be able to claim the right to
remain as Occupying Powers over the long term, a situation which borders on
conquest, prohibited by a peremptoryom of contemporary international law. It is,
however, now almost 36 years since the outbreak of the armed conflict that gave rise
to the occupationof the Occupied PalestinianTerritory relevant to these proceedings.396. Nevertheless, it is not necessary for this question to be addressed in order to
respond to the Request for an advisory opinion in this case. It is one of the basic
axioms of international humanitarian law that its provisions apply in situations of
armed conflict regardless of the legality of the initial resort to armed force. Thejus in
bel10 applies whenever there is in fact an anned conflict, and for so long as an
occupation arising from an international armed conflict subsists in fact. That is the
case here.
(2) InternationalHumanitarianLaw
397. International humanitarian law is binding upon Israel in respect of its
occupation of the Occupied Palestinian Territory, including East Jerusalem. It
became binding at the moment Israel occupied territory that was not part of the State
of Israel and remainsbinding while Israelremains in occupation of such territory.
398. International humanitarian law is comprised, in the Court's words, of "a
corpus of treaty rules the great majority of which [have] already become customary
and which [reflect] the most universally recognized humanitarian principles."307It
comprises rules governing the actual conduct of armed conflict and belligerent
occupation (more recently referred to simply as 'occupation'). These rules are
expressed mainly in the Hague and Geneva Conventions and Additional Protocols,
and general or customaryinternationalhumanitarianlaw.
307
Legality of the Threator UseofNuclear Weapons,Advisory Opinion,I.C.J. Reports 1996, p.
226, at 258 (para. 82).399. As an aspect of internationalhumanitarian law, the law of occupation applies
to the governance of occupied territories, including the conduct of an occupying
power towards protected persons during occupation. These rules of general
international law were codified in the 1907 Hague Regulations annexed to Hague
ConventionIV on the Laws and Customs of War on Land (the Hague Regulations) as
well as the 1949Geneva ConventionIV Relativeto the Protection of Civilian Persons
in Time of War (the Fourth Geneva Convention).There are currently-f90 Stateparties
to the FourthGeneva Convention.
(a) Basic principles of internationalhumanitarianlaw in the Hague and
Geneva Conventions
400. The general fiamework of international law governing occupation is
provided in Articles 42 to 56 of the 1907Hague Regulations and in Section III of the
Fourth Geneva Convention. A convenient starting point is Article 43 of the Hague
Regulations,which provides:
"The authority of the legitimate power having in fact passed into the
hands of the occupant, the latter shall take al1 the measures in his
power to restore and ensure, as far as possible, public order and safety,
while respecting, unless absolutelyprevented, the laws inforce in the
country." (emphasisadded).
This provisionundoubtedlyexpressesa rule of generalinternationallaw.
401. The Occupying Power must thus respect the laws in force in the country,
and must not deprive protected persons of their rights by unnecessary and
disproportionatechanges. Theduty is emphasizedin Article 47 of the Fourth Geneva
Convention which insists that protected persons shall not be deprived of theConvention's protection "by any change introduced, as the result of the occupation of
a territory, into the institutions or government of the said territory, nor by any
agreement concluded between the authorities of the occupied territories and the
Occupying Power, nor by any annexation by the latter of the whole or part of the
occupied territory." In the Commentary on Article 47, the ICRC states:
"This provision [Article 431of the Hague Regulationsis not applicable
only to the inhabitants of the occupied territory; it also protects the
separate existence of the State, its institutions and its laws. This
provision does not become in any way less valid because of the
existence of the new Convention, which merely amplifies it so far as
the question of the protection of civilians is con~erned."~~~
402. The protection of the separate existence of the occupied territory is also
reflected in the Hague Regulations by the protection they provide not only for private
property (Articles 46 and 47), but also to public real property and natural resources, of
which the occupying power "shall be regarded only as administrator and
usufi-uctuary"and "must safeguard the capital of these properties and administer them
in accordance with the i-ulesof usufruct" (Article 55).
403. The Fourth Geneva Convention contains a number of further requirements
for the benefit of protected persons. These fa11into two categories.The first category
of provisions applies to the benefit of al1protected persons in an international armed
conflict or occupied territory. Foremost amongst this group of provisions is the
obligation to provide humane treatment in Article 27. The second category of
provisions specifically apply to protected persons who are in occupied territory.
These provisions are outlined in Section III of the Fourth Geneva Convention. An
308
International Cornmitteeof the Red Cross, Commentary, IV Geneva Convention Relative to
the Protection of Civiliansons in Time of War(ICRC, 1958)pp. 27-4.Occupying Power must not transfer or deport protected persons from occupied
territory nordeport or transfer parts of its own population into the occupied territory
(Article 49), seize or destroy real or persona1 property "except where rendered
absolutely necessary by military operations" (Article 53), or alter the status of public
officiais in the occupied territory (Article 54). It must ensure food and medical
supplies and services of the population to the fullest extent possible (Articles 55 and
56) and respect the laws in force at the commencement of occupation while restoring
and maintainingpublic order and safety (Article 64).
404. Certain violations of the Fourth Geneva Convention are regarded as grave
brea~hes. UnderArticle 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: wilful killing, torture or
inhurnanetreatment, includingbiological experiments,wilfully causing
great sufferingor serious injury to body or health,unlawful deportation
or transfer or unlawful confinementof a protected person, compelling a
protected person to serve in the forces of a hostile Power, or wilfully
depriving a protected person of the rights of fair and regular trial
prescribed in the present Convention, taking of hostages and extensive
destruction and appropriation of property, not justified by military
necessity andcarried out unlawfullyand wantonly."
405. The scope and content of these obligations is further discussed in so far as
they are relevant in relation to the Wall being built by Israel in the Occupied
Palestinian Territoryin Chapter 9. "Article 3
The characterization of an act of a State as internationally wrongful is
governed by international law. Such characterization is not affected by the
characterizationof the same act as lawful by internal law.
Article 32
The responsible Statemay not rely on the provisions of its internal law
asjustification for failure to complywith its obligations under this Part
[SC.the obligationsof cessation and reparation]."
The extensive range of authorities in support of these basic propositions, including
many decisionsof this Court and its predecessor, is set out in the ILC's commentaries
to these Articles.
409. At one time, Israel accepted that the Fourth Geneva Convention was
applicable as a matter of law in the Occupied Palestinian ~erritory.~~~ This
acceptance proved to be short-lived and was revoked. Since the revocation, Israel has
formally denied the applicability of this Convention whilst declaring that it had
decidedto act de facto in accordancewith its humanitarianprovision.
410. Any such distinction between de facto and de jure application of the
Convention in the Occupied Palestinian Territory must be rejected. The International
Cornmittee of the Red Cross expressed its own reservations at a Meeting of Experts
on 27 October 1998in these terms:
"Certain belligerents have agreed only to de facto application of the
Fourth Geneva Convention, at times making even that conditional
upon reciprocity.. . However, it would be unacceptableto allow - still
less encourage - a set of parallel rules to be established,a sort of sub-
311 Report of the Secretary-General preparedpursuant to General Assembly Resolution ES-
10113,AIES-101248,24November 2003, Annex1.
312 MilitaryOrderNo. 3, 7 June 1967, Art. 35:"The Military ..must apply the provisions
of the Geneva Convention dated 12August 1949Relative to the Protection ofCivilians in Time of War
with respect to judicial procedures. In case of conflict between thisOrder and said Convention, the
Convention shall prevail.". This Article was subsequently deleted by Military Order 144 on
22 October 1967. category of the law, which might or might not be respected, according
to the whims of the party applying it, despite the fact that the States
have categoricallycommittedthemselves to recognizing legal texts that
set out precise rights and obligations. Political conditions should under
no circumstancesbe allowed to weaken the protection to be enjoyedby
civilians under hard ~aw."~'~
411. There is, furthemore, no legal basis for drawing a distinction between those
rules of the Fourth Geneva Convention that are humanitarian in nature and those that
are not. The entire Fourth Geneva Convention is humanitarian in nature. The
Conventionis devotedexclusivelyto the protection of civilians in time of war.
412. As demonstrated in Chapter 7, the Fourth Geneva Convention has dejure
application in the OccupiedPalestinianTerritory,both as a multilateraltreaty which is
applicable in terms to the still unresolved situation following the 1967 War, and
because it is in al1relevant respects reflective of general international law. As this
Court has affimed of the Hague and Geneva Conventions, "these fundamental rules
are to be observed by al1Stateswhether or not they have ratified the conventions that
contain them, because they constitute intransgressible principles of international
customarylaw 9.314 The International Criminal Tribunal for the Former ~u~oslavia~l~
and the Eritrea-Ethiopia Claims have endorsed this view in their own
work.
313 International Committee of the Red Cross, "General Problemsin Implementing the Fourth
Geneva Convention", Meeting of Experts, 27 October 1998.
314 Legality of the Threat of Nuclear Weapons,Advisory Opinion, 8 July 1996, ICJ Reports
1996,p.226 at 257-(para. 79).
315
316 See, e.g.,Prosecutor v. Tadii,judgment of7 May 1997, 112ILR 1, 179ff.
Eritrea-Ethiopia Claims Commission, Partial Award - Prisoners of War, 1 July 2003,
42 ILM 1056,paras. 39 - 41.413. In addition, a number of provisions of Additional Protocol 1of 1977 reflect
customaryinternationallaw, especiallywhere they are developmentsor specifications
of standardscontainedin the 1949Geneva Conventions.
(3) InternationalHuman RightsLaw
414. The applicable law in the Occupied Palestinian Territory is international
humanitarian lawand internationalhuman rights law. Although important aspects of
international human rights law have entered into customary international law, it is
sufficient for present purposes to rely on the universal hurnan rights treaties which
Israel itselfhas acceptedby becominga party to them.
415. Israel is a party, in particular, to the International Covenant on Civil and
Political Rights and the International Covenant on Economic, Cultural and Social
Rights (both of which it ratified on 3 October 1991).~" In particular Article 2(1) of
the InternationalCovenant on Civil and Political Rightsprovides that each State Party
"undertakes to respect and to ensure to al1individuals within its territory and subject
to its jurisdiction" the rights recognized in the Covenant. The term "within its
territory and subjectto itsjurisdiction" in Article 2(1) is disjunctive; States Parties are
bound to apply the Covenant to territories over which they exercise jurisdiction,
including as a belligerentoccupant.
317
Israel is also a party, rliato the Conventionon the Prevention and Punishment of the
Crime of Genocide (ratified on 9 March 1950), the Convention Relating to the Status of Refugees
(ratified o1 October 1954),the Slavery Convention (signed on 12 September 1955) and the United
Nations Convention ontheRights of the Child (ratified on3 October 1991).416. Thus the United Nations Human Rights Committee is correct in concluding
that the International Covenant on Civil and Political Rights applies to the benefit of
the populations in the Occupied Palestinian ~erritory.~'~
417. Israel maintains that the applicable law in the Occupied Palestinian Territory
is international humanitarian law rather than international human rights law. In its
view, there is a well established distinctionbetween the two areas of internationallaw
and in times of armed conflict, the applicable law is international humanitarian law.
The International Covenant on Civil and Political Rights and the International
Covenant on Economic, Social and Cultural Rights are said by Israel to not be
applicable during armed conflict,but only during peacetime.319
418. Many international human rights treaties explicitly state that they apply in
both times of war and peace. For example, Article 2(2) of the Convention against
Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment of 1984
provides:
"2. No exceptional circumstanceswhatsoever,whether a state of
war or a threat of war, interna1political instability or any other public
emergency,may be invoked as ajustification of torture."
318
The Human Rights Committee has twice examined periodic reports by Israel to the
Committee. The Committee has issued observations on bothof these occasions affirming that the
Covenant applies in the OPT: Concluding Observations of the Human Rights Committee: Israel, 21
August 2003, CCPR/C0/78/ISR, para. 11, Annex 8 in Annex Volume 2 accompanying this Written
Statement; Concluding Observalions of the Human Rights Committee: Israel, 18 August 1998,
CCPR/C/79/Add.93, para. 10, Annex 7 in Annex Volume 2. Such a view was also taken by the
Committee on Economic, Social and Cultural Rights,Concluding Observations of the Cornmitteeon
Economic, Social and Cultural Rights: Israel,/C.12/1/Add.90, 23/05/2003, paras. 15 and 31;
Concluding Observations of the Committee on Economic, Social and Cultural Rights: Israel,
319.12/1/Add.69,31/08/2001, paras. Il and 12.
Israel's position is outlined, for example, in Report of the Secretaiy-General prepared
pursuant to General Assembly Resolution ES-1043, AIES-101248,24 November 2003, Annex 1;
Israel's Report to theHuman Rights Committee,CCPR/C/ISR/2001/2,para. 8.419. The GenocideConventionlikewiseprovides in Article 1:
"The ContractingParties confirm that genocide, whether committed in
time of peace or in time of war, is a crime under international law
which theyundertaketo prevent and to punish."
420. Many international and regional human rights conventions, including the
ICCPR, contain provisions permitting States to derogate from certain provisions of
the convention during war: see especially Article 4 of the ICCPR. The explicit
exceptionfor derogationduring war clearly implies that absent derogation,the human
rights conventionwill apply fully during war. Moreover, it sets a limit to the kinds of
derogation that will be acceptable even in time of war or national emergency, and it
confers a special status upon non-derogable rights-many of which, as will be seen,
are violated by Israel's construction and operation of the Wall in the Occupied
PalestinianTerritory.
421. The UN Human Rights Committee states, in its most recent draft General
Commenton Article2,
"the Covenant applies also in situations of armed conflict to which the
rules of international humanitarian law are applicable. While, in
respect of certain Covenant rights, more specific rules of international
humanitarianlaw maybe relevant for the purposes of the interpretation
of Covenant rights, both spheres of law are complementary, not
mutually exclusive."320
422. As this Courtpointed out in the Nuclear WeaponsAdvisory Opinion,there is
a conceptual distinction between the body of international law comprising
international humanitarian law and that of international humn rights law. At the
320
See Human Rights Committee: Draft General Comment on Article2: the Nature of the
General Legal Obligation Imposed on States Parties to the Covenant, CCPR/C/74/CPR.4/Rev.4same time the Court affirmed the continued application of international human rights
law to tenitories affectedby armed conflict, subject to the application of international
humanitarian law as a lex specialis. The Court was presented with the argument that
the ICCPR applied only to the protection of human rights in peacetime. The Court
said:
"The Court observes that the protection of the International Covenant
of Civil and Political Rights does not cease in time of war, except by
operationof Article 4 of the Covenant whereby certain provisions may
be derogated from in a time of national emergency. Respect for the
right to life is not, however, such a provision. In principle the right not
arbitrarily to be deprived of one's life applies also in hostilities. The
test of what is an arbitrary deprivationof life, however, then falls to be
determined by the applicable lex specialis, namely the law applicable
in armed conflict which is designed to regulate the conduct of
hostilities. Thus whether a particular loss of life, through the use of a
certain weapon in warfare, is to be considered an arbitrary deprivation
of life contrary to Article 6 of the Covenant, can only be decided by
referenceto the law applicable in armed conflict and not deduced from
the terms of the Covenant it~elf."~~'
The relationship between international humanitarian law and international human
rights law is thus not one of exclusion but of coordination. Where international
human rights law deals in generalterms with some matter (e.g. "arbitrary" deprivation
of life) which is regulated in more detail and specificity by international humanitarian
law, the latter provides the content to the applicablelaw, i.e. it determinesthe scope of
the legal standard. Where on the other hand international human rights law excludes
certain treatment entirely - e.g. torture - then that treatment remains internationally
unlawful at al1times and places including during armed conflict or occupation.
(advance version), para. 11. This General Commenthas not yet been adoptedas a whole, but para. 11
r321oducedin the text is already adopted.
1C.J.Reports 1996,p. 226, at 240, para. 25.423. Israel is bound by international human rights in both general international
law and in treaty. These treaty obligations include not only the international human
rights treaties binding upon Israel, but also the Israel-Palestine Liberation
Organisation Interim Agreement on the West Bank and the Gaza Strip (the 'Interim
Agreement7).By virtue of the Interim Agreement, both Israel and the Council are
obligedto:
". .exercise their powers and responsibilities pursuant to this
Agreement with due regard to internationally-accepted noms and
principles of humanrights andthe rule of la^."^^^
This provision requires Israel to have due regard to international human rights as well
as internationalhumanitarianlaw.
424. Israel's arguments have been rightly rejected at the international level,
including by the United Nations Human Rights Committee. The Human Rights
Committee has identified Israel's failure to recognize the application of the Fourth
Geneva Convention in the Occupied Palestinian Territory as one of its principal
subjects of concern. On twooccasions, in comrnentingon Israe17speriodic reports, it
has recommended that Israel re-consider its position and include in future periodic
reports informationregarding the application of the Fourth Geneva Convention in the
Occupied Palestinian Territory. On both occasions, it has squarely rejected Israe17s
argument that the application of international humanitarian law during an armed
conflict precludes the application of the Covenant, or the accountability of States
parties to the Covenant for their actions outside their own territories including
322 Article XIX, Israel-Palestine Liberation Organisation: Interim AgrWeest Bankth
and theGaza Strip,28 September 1995:text in (1997)36ZLM551.occupied territ~ries.~~~ Similar conclusions have been drawn by the Committee on
Economic,Socialand Cultural ~i~hts.~~~
(4) Conclusion
425. Accordingly the applicable law in the Occupied Palestinian Territory,
including East Jerusalem, is the international humanitarian law and international
human rights law.
426. In the past Israel has attempted to circumvent the application of both
international humanitarian law, particularly the Fourth Geneva Convention, and
international human rights conventions such as the International Covenant on Civil
and Political Rights, in order to be relieved from international responsibility for its
policies and practices and events taking place in the Occupied Palestinian Territory.
Israe17sarguments have been widely rejected in both the practice of the United
Nations and other internationalbodies such as the InternationalCommittee of the Red
Cross. The correct position is that under international law, Israel's status of occupier
binds it to act in compliance with both international humanitarian law and
international human rights law.
323
See Concluding Observations of the Human Rights Committee: Israel, 21 August 2003,
CCPR/C0/78/ISR, para. Il, Annex 8 in Annex Volume 2 accompanying this Written Statement; and
Concluding Observations of the Human Rights Committee: Israel CCPR/C/79/Add.93, 18 August
1998,para. 10,Annex7 in Annex Volume 2.
324 Cornmittee on Economic, Social and Cultural Rights, Concluding Observations of the
Committee on Economic, Social and Cultural Rights: Israel,E/C.12/1/Add.90, 23/05/2003, paras. 15
and 31; Concluding Observationsof the Committee on Economic, Social and Cultural Rightsrael,
E/C.12/1/Add.69,3 1/08/2001,paras. Il and 12. Chapter9 ISRAEL'S VIOLATIONS OF THE APPLICABLE LAW
THROUGH THE CONSTRUCTION AND MAINTENANCE OF THE
REGIME OFTHEWALL
Introduction
(1) The frameworkof legal analysis
427. The previoustwo Chapters have demonstrated that the existing and planned
Wall lies in the Occupied Palestinian Territory; that Israel's rightsin that territory are
those of an OccupyingPower.
428. This Chapterpresents Palestine's submissions regarding the legal principles
applicableto the situation.The explanationof the factualbackground in Chapters 3-6
indicates that the Wall has consequences that constitute violations of specific
provisions of intemational law. The latter part of this Chapter addresses those
violations. But the fundamental legal issue is the legality of the Wall. Its very
construction and maintenanceiolates international law. It is as if one person were to
build a wall in a garden belonging to another. The Wall will indeed haverious
adverse andunlawfùl effects;but the fùndamentalpoint is that it shouldnot be there at
all.
429. Accordingly, after a section (section 2) briefly recalling the applicable rules
and principles of international law, the next section (section 3) of this Chapter is
concemed with the basic question of the legality of the constructionof the Wall. That
is followed by section 4, which is concerned with specific violations of the
international law governing occupation. Section 4 considers provisions ofinternationalhumanitarianlaw and international human rights law together. Although
these are distinct bodies of law whose implementation is subject to distinct
procedures, it hasbeen thought helpfùl to organize section 4 accordingto the nature of
the harm resultingfiom the Wall.
(2) The principlesof international humanitarianlaw
430. As Chapters 7 and 8 explained, Israel's rights in the Occupied Palestinian
Territory, including East Jerusalem, are those of an Occupying Power. The rights are
derived fiom internationalhumanitarian law and their exercise is subjectto constraints
imposed both by international humanitarian law and by international human rights
law. The main principles of international humanitarian law that are of fùndamental
importancein this casewere surnrnarizedin Chapter 8.They are as follows.
431. First, given the peremptory prohibition of the acquisition of territory by
force, there can be no possibility that the rights of the Occupying Power derive from
the exerciseof its sovereigntyover the territories. Suchrights as the OccupyingPower
possesses, it possesses over territory to which,x hypothesi, it has no sovereign title.
There can, accordingly,be no presumption in favour of the existence of any rights in
favour of the Occupying Power. Rather, the Occupying Power must demonstrate the
basis of its entitlementto take any action in the occupiedterritory.
432. Second, the Occupying Power has an obligation to "take al1the measures in
his power to restore, and ensure, as far as possible, public order and safety, while
respecting, unless absolutely prevented, the laws in force in the country": Hague
Regulations, Article 43. That provision, which undoubtedly expresses a rule of
customary international law, embodies both a right and also duties. The OccupyingPower has the right, and also the duty, to take measures to secure public order and
safety; and it also has the duty to do so within the framework of the laws already in
force in the country, "unless absolutelyprevented". This reflects the principle that, in
the words of one distinguished commentary, "political institutions and public life in
general should ...be allowedto continuewith as little disturbance as possible."325
433. Third, it is the Occupying Power that has, by virtue of its occupation of the
territory, the legal obligation "to the fullest extent of the means available to it" to
ensure "the food and medical supplies of the population", and to ensure and maintain
medical and public health services in the occupied territ01-y.~~ T~his is a particular
expression of its responsibilities for the overall welfare and rights of the occupied
population, reflected also in the continued applicability of international human rights
law in the occupiedterrit~ry.~~'
434. Fourth, the Occupying Power may requisition goods and services to the
extent that they are necessary to satisQ the needs of the occupation army. As it is put
in Article 52 of the Hague Regulations:
"Requisitions in kind and services shall not be demanded from
municipalities or inhabitants except for the needs of the army of
occupation.They shall be in proportionto the resources of the country,
and of such a nature as not to involve the inhabitants in the obligation
of takingpart in militaryoperationsagainst their own country."
435. Fifth, the right to destroy private property is limited by the criterion of the
absolute necessities of military operations.In the words of Article 53 of the Fourth
Geneva Convention,
325
DieterFleck (ed.)The Handbook of Humanitarian Law in Armed Conjlicts, (OUP, 1995),
section 51.
326 1949FourthGeneva Convention,Article5 s5, 56. "Any destruction by the Occupying Power of real or persona1property
belonging individually or collectively to private persons, or to the
State, or to other public authorities, or to social or cooperative
organizations, is prohibited, except where such destruction is rendered
absolutelynecessary by military operations."
436. Sixth,the rights to requisition and destroy property in order to meet the needs
of the occupying forces are subject to overriding limitations resulting from the
principle of proportionality. The principle is not spelled out in this form in either the
Hague or the Geneva Conventions;but it is plainly a fundamentalprinciple pervading
the entirety of internationalhumanitarianlaw and implicit in the conceptof necessity.
437. In the present context, these principles indicate the limitations upon the
actions that Israel, as the Occupying Power, may take in the Occupied Palestinian
Territory, including East Jerusalem. Israel has the right to construct and maintain the
Wall if, but only if, Israel can demonstrate that it has such rights under the law of
occupation. That law recognizes that the Occupying Power has military necessities. It
does so by giving the Occupying Power specific rights to take certain actions where
military necessity so requires. Those specific rights are the only rights that Occupying
Powers possess in relation to occupied territory. There is no general right to take
action on the ground of militarynecessity.
438. Israel's rights must be establishedin relation to the actual Wall: that is to Say,
the Wall as it is being constructed, operated and planned by Israel as the Occupying
Power, along the actual route that it follows. They must also be demonstrated in
relation to the actual necessity that issaid to justify the construction and operation of
327
See, e.g., the Concluding Observations of the Human Rights Committee: Israel, UN Doc.
CCPR/C0/78/ISR, 21 August 2003, paragraph 11,Annex 8 in Annex Volume 2 accompanying this
Written Statement.the Wall. Like other exercises of powers having an international aspect, the propriety
of exercisesof the claimedrights may be reviewedby an international
439. This point should be underscored. There is no doubt that Israel has, in
principle, the right to construct a wall on Israeli soil, along the Israeli side of the
Green Line. Israel's legal obligations would of course affect the manner in which
such a wall would be built and operated. For example, prohibited weapons could not
be used in the security systems incorporated in the wall. But Israel plainly has both
the legal right to build a security wall on its own territory along the Green Line and
the practicalpossibility and ability to do so.
440. The central issue in this case is, therefore, whether in the light of that
possibility Israel has any right to build the Wall outside its territory, along the route
that it haschosen, and to maintain in respect of that physical barrier to movement the
regulatory regime that it has put in place.
(3) Thereis no lawful basis for the buildingof the Wall
441. The rights of an Occupying Power are of a nature quite different from the
rights of a sovereigngovernment. The point was made by SirHersch Lauterpacht:
"...the administration of the occupant is in no wise to be compared
with ordinary administration, for it is distinctly and precisely military
administration. In carrying it out the occupantis totally independent of
the constitutionand the laws of the territory, since occupation is an aim
of warfare, and the maintenance and safety of his forces and the
purpose of war, stand in the foreground of his interest, and must be
promoted under al1 circumstances and conditions. But, although as
regards the safety of his army and the purpose of war the occupant is
vested with an almost absolute power, as he is not the sovereign of the
territory he has no right to make changes in the laws, or in
administration,other than those which are temporarily necessitated by
328 SeeAnglo-Nonuegian Fisheries,I.C.J. Reports 1951,p. at132.
198 his interest in the maintenance and safety of his arrny and the
realisation of the purpose of war. On the contrary, he has the duty of
administering the country according to the existing laws and the
existing rules of administration; he must ensure public order and
safety, must respect family honour and rights, individual lives, private
property,religious convictionsand liberty."329
442. Military necessity provides no general, blanket justification for actions in
occupied territory, but only a justification within the speclJic provisions of
international humanitarian law. Moreover, the specific provisions of international
humanitarianlaw treat military necessity in different ways.
443. Thus, the seizure of property is permissible only "for the needs of the army
of occupation."330Seizures or requisitions of property in the broader interests of the
Occupying Power, or to satisQ the needs of units other than the army of the
OccupyingPower, are not permitted. In the present context there is a clear distinction
between takings of Palestinian property to meet the needs of the Israeli army and
takings to meet the needs of Israeli civilians. The former may be legally justifiable;
the latter certainly is not.
444. Destruction of property, in contrast, is permissible only for a more limited
purpose. It is permissible only "where such destruction is rendered absolutely
necessary by military ~~erations."~~~ There are two limiting criteria in that phrase.
445. First, the necessity must arise from 'military operations'. That is not the
same as 'military occupation'. In the midstof battle it may be necessary for a tank to
move through an orchard or a field, destroying the crops on the way. In the relative
329
Hersh Lauterpacht, Oppenheim's International Law, vol. II, (7~ed. Longmans, 1952), p.
437.calm of a subsequent occupation, there is neither the need nor the excuse for such
destruction. If the Occupying Power wishes to seize and destroy property during the
subsequentoccupation, it must do so through the forma1processes of requisition; and
that is permissible only in order to meet the needs of the occupying army. Second,the
necessity must be 'absolute'. Thereis no question of a 'balance of convenience' or
'reasonable necessity': theremust be no alternativewhatever to the destruction of the
ProPerS.
446. The concept of necessity is also appliedwith a precise meaning in the context
of the rights and duties of the Occupying Power in relation to the restoration and
maintenance of public order. Under the Hague Regulations, that duty must be
exercised "while respecting, unless absolutely prevented, the laws in force in the
country 77.32 Article 64 of the Fourth Geneva Convention prescribes the principle in
slightlydifferentterms, entitlingthe OccupyingPowerto modi@the penal laws of the
occupied territory to the extent necessary to protect the security of the Occupying
Power, or to the fulfilment of its duties to restore and maintain peace and maintain
orderly government.333These formulations are somewhat wider than the notion of
what is necessary to meet the needs of the occupyingarmy or of military operations;
but it is still strictly confined to a necessity that cannot be detached from the military
necessity facingan OccupyingPower.
330
331 Hague Regulations, Article 52.
332 Fourth Geneva Convention, Article 53.
333 Hague Regulations, Article 43.
Article 64 reads as follows: "Art. 64. [l] The penal laws of the occupied temtory shall
remain in force, with the exception that they may be repealed or suspended by the Occupying Power in
cases where they constitute a threat to its security or an obstacle to the application of the present
Convention.
.....[2] The Occupying Power may, however, subject the population of the occupied territory to
provisions which are essential toable the Occupying Power to fulfil its obligations under the present
Convention, to maintain the orderly govemment of the territory, and to ensure the security of the447. In al1 cases, the military necessity must be related to the needs of the
occupation. An Occupying Power may occupy a territory in order to achieve its
military objectives: but the military occupation of the territory is not in itself a
legitimate military objective. The Fourth Geneva Convention recognises that States
will sometimesuse armed force, lawfully or unlawfully, to achieve their aims, and it
sets out legal obligations that must be observed in the course of using armed force,
including obligationsrelating to military occupation -the jus in bello. It emphatically
does not and could not make military occupation an independent lawful objective. To
do so would contradict the jus cogens prohibition on the acquisition of territory by
force.
448. Israel, as the OccupyingPower, does not have the right to maintain whatever
level of military occupation it chooses in the Occupied Palestinian Territory,
includingEast Jerusalem, independentlyof the aims of the initial armed conflict. The
military occupation began in 1967. Israel has since made peace treaties with Egypt
and Jordan, although the issue of the occupied temtories remains unresolved, as those
treaties recognise. The justification for the continuing occupation is unclear, but
appears close to a circular argument: that Israel must maintain a military presence in
the West Bank in order to protect its facilities in Israel and the West Bank against
attacks from those who oppose Israel's continuing occupation of the Palestinian
territory, includingEast Jerusalem.
449. The Wall is not necessary for security purposes, as will be explained. The
legal significance of this pointis fundamental.The construction and operation of the
Occupying Power, of the members and property of the occupying forces or administration, and likewise
of the establishments ands of communication usedby them."Wall are beyondIsrael's rights andviolate international law. Therebeing no necessity
for the Wall, no further inquiry is needed. In particular, the question of
proportionality does not arise, because the requirement that the Wall be a
proportionate response to threats facing Israel would arise only if the initial military
necessity were demonstrated.In any event, however, the Wall is also a demonstrably
disproportionateresponseto the situation in the OccupiedPalestinianTerritory.
(a) TheWall lacks any iustification as a securitymeasure
450. Palestine faces an irnmediate problem in presenting its caseA report of a
SpecialRapporteurto the UN Commission on Human Rights noted that "[tlhere is no
transparency surroundingthe constructionof the Wall and its final course seems to be
known only to an inner circle of the military and political establishment within
1srae1."~~T~hat has bothprocedural and substantiveimplications.
451. Procedurally, while Palestine is able to make precise submissions regarding
the Wall as it currently exists and as reflected in plans that have already been
published,the lack of transparencymakes it difficult for Palestine to present a precise
case addressedto the entireplanned course of the Wall. Onlywhen the Wall becomes
a fact on the ground does its route become clear and specific argument against it
become possible. Substantively, the uncertainty concerning the route and the
construction of the Wall and any gates that might be left in it, and concerning the
timetable for its construction, is itself a cause of great difficulty for those who must
try to plan their lives so as to cope with the arriva1ofthe Wall.
334 DugardReport(2003),para.11.452. This section is, accordingly, based upon Palestine's knowledge of works
already executed and of plans already published, and upon the best information that
Palestine has beenable to obtain concerning Israel's plans for the continuation of the
Wallproject.
453. There is no doubt that a State may, in principle, forti@its boundary so as to
prevent unlawful incursions into its territory. The use of defensive walls to protect
particular military installations or facilities belonging to ancupying Power is, in
principle, similarlyunobjectionable. A wall around a military compound, or a police
station or embassy may be a prudent and proportionate measure to avert the risk of
attacks upon the facilities contained within the wall. Israel's Walldoes not surround
vulnerablemilitary facilities.It surroundsPalestinians.
454. As was explained in Chapter 6 of this Written Statement, the Wall, as
presently constructed or planned, extends throughout practically the whole of the
West Bank and is almost entirely built in the Occupied Palestinian Territory.
Furthermore, it is widely reported that the Israeli Government intends that the Wall
should encircle the entire West Bank -or, more precisely, that the Wall should
encircle a much reduced area of the West Bank well inside the Green ~ine.~~N ~o
officia1plan for the eastern Wall has been published; but the report has been given
credence by, for instance, the Special Rapporteur to the UN Commission on Human
~i~hts.~~~
455. In those locations where the Wall follows the Green Line, but is wholly or
partly constructedon territory on the Palestinianside of the Green Line, the Wall may
335 See e.g., B'Tselem 2003 Report, p. 3, Annex 13 in Annex Vol2maccompanying this
Written Statement.in a general sense be said to 'defend' Israeli territory. It is nonetheless unlawful.
Plainly,the Wall couldhave been built upon Israeli territory. There is no need for it to
be built on Palestinian territory. The requisitioning or confiscation of the land on
which the Wall is constructed is, accordingly, in violation of international law. The
questionof the legality of the 'requisitioning' or confiscation of the land on which the
Wall is constructedis addressed further below.
456. Most of the Wall does not follow the Green Line. Most of it is built well
inside the Occupied Palestinian Territory, including East Jerusalem. The Wall is said
to be necessary to prevent and obstruct attacks upon Israel fiom the West Bank. The
threats against which the Wall is allegedly intended to guard are not threats of rocket
or artillery attack. (And if they were, given the very small size of Palestinian
territory, it is unclear what protection the Wall could in fact offer.) The threats are,
primarily, threats of suicide or other bombers, presumably travelling in al1or most
cases by motorized transport and therefore along known roads or tracks, to attack
Israeli targets.
457. There is no reason to suppose that a wall built, say, 5 km from the Green
Line offers any greater protection to Israeli territory than a wall built on the border
itself. As was seen in Chapter 5, Israel says that it needs to have a closed zone into
which it can chase potential bombers who elude apprehension at checkpoints in the
Wall. This argument is unconvincing. Any such individuals could be chased if the
Wall were on the Green Line:they could be chased into Israeli territory. If there are
particularly vulnerable sites in Israel near to the Wall, those sites can themselves be
protected.
336 DugardReport (2003), par11.458. Moreover, the possibility of potential attackers remaining undetected at
checkpoints surely points to a need to improve the efficiency of checkpoints rather
than to divertthe Wall. This very point was made within the Israeli Govemment. The
Israeli State Comptroller commented in his July 2002 report on the Closed Zone (the
'seam zone') that "IDF documents indicate that most of the suicide terrorists and car
bombers crossed the seam area into Israel through the checkpoints, where they
undenvent faulty and even shoddy
459. Furthermore, the chances of a potential bomber avoiding apprehension and
then being identified in sufficient time to be detained in the Closed Zone are so small
as to be fanciful, and certainly no rational basis for a decision to re-route the Wall
away from the Green Line. That this is not the reason for the route of the Wall is
clear fromthe fact that the width of closed zone between the Wall and the Green Line
is far from uniform. It mostly varies fi-omaround 5km to around 22km, and in some
places (notablyin the north) is practically non-existent.
460. What, then, might be the reasoning behind the decision to push the Wall deep
into the Occupied Palestinian Territory, leaving an estimated 43% of the West Bank
land area outside the Wall? Israel has offered no adequate explanation of the
justification for the Wall, beyond bald assertions of its security interest. The
explanation is self-evident. There are three main kinds of location where the route of
the Wall departs significantly fi-omthe Green Line:
337
State Comptroller ofIsrael's Seam Zone Investigation Report No. 2 (July2002), as quoted in
DugardReport (2003),para. 8. i. there are the locations in which the Wall is pushed insidePalestinian
territory in order to leave Israeli civilian settlements or other civilian
facilitiesin the West Bank outside the Wall;
.
il there is the segmentof the Wall around East Jerusalem;
iii there is the planned Eastern segment of the Wall, which runs alongside
the river Jordan.
(b) The Wallrnaynot be diverted to protect Israeli settlementsin the
OccupiedPalestinianTerritory, includin~East Jerusalem
461. As the maps in Annex Volume 1 to this Written Statement show, the route
of the Wall is very obviously designed to put settlements in the Occupied Palestinian
Territory such as 'Ariel', 'Ma'ale Adumim', and 'Etzion'o ,utside the Wall. The
question is whether thecivilian settlementsmay be given specialprotection by means
of shifts of the course of theWall fi-omthe Green Line.
462. Occupying Powers have the right, during the period of military occupation,
to defend their military facilities in the occupied territory. Israeli army installations
inside the Occupied Palestinian Territory may accordingly be defended, by the usual
military methods of defensive structures,surveillance,and intelligence-gathering. (Of
course, those of them that lie insidethe course of the Wall cannot be protectedby the
Wall; and there is no evidence that the Wall has been constructed to protect any
military facilitieslyingbetweenthe Wall and the Green Line).
463. The legal position of the civilian settlementsis quite different. International
humanitarian law stipulates, in Article 49(6) of the Fourth Geneva Convention, that"the OccupyingPower shall not deport or transfer parts of its own civilian population
into the territory it occupies". The establishment by the Occupying Power of civilian
settlements in occupied territory is not only a violation of international law, it is
declaredto be a 'grave breach', and awar crime, by Article 85 of Additional Protocol
1to the GenevaConventions.
464. The prohibition in Article 49(6) of the Fourth Geneva Convention is not
confinedto the forcible transfer by an Occupying Power of parts of its population into
the occupiedterritory. In the words of a Legal Adviser to the U.S. StateDepartment,
"It seems clearly to reach such involvements of the occupying power
as determining the location of settlements, making land available and
financing of settIements, ad well as other kinds of assistance and
participationin their ~reation."~~'
465. There is no doubt that Israel has assisted in the establishment of many of the
settlements in the West Bank in the ways described in that passage, and that Israe17s
actions in the relevant area constitute a 'transfer of parts of its own civilianpopulation
into the territory it occupies', in violation of Article 49(6).339Israel's settlement
policy, in so far as it affectsthe Wall, was described in Chapter4.
466. Just as the transfer of civilianpopulations into occupiedterritory is unlawful,
so, too, are the settlementsaccommodatingthe transferredpopulationsunlawful. This
is well established. The illegality of the Israeli settlements in the Occupied
Palestinian Territory, including East Jerusalem, has been clearly, consistently and
338
339 Digest of USPractice inInternational Law['DUSPIL71978, p. 1575at 1577.
DUSPIL 1978, 1575-1578;Letter of H.J. Hansell, Legal Adviser, U.S. Department of State,
to House Cornmittee on International Relations,(21 April 1978), 17ILM777 (1978).repeatedly affirmed by States and international bodies, including the UN Security
~ouncil.~~~
467. The settlementsbeing unlawful, there can be no legal right to protect themby
diverting the course of the Wall away fiom the Green Line. The conclusion is
inescapable.The same reasoning applies to facilities and infrastructure,such as roads,
built in the Occupied Palestinian Territory, including East Jerusalem, in order to
support the civilian settlements. As the Wall cannot lawfully be built in order to
protect an unlawful civilian settlement so, too, it cannot lawfully be built in order to
protect a road constructedin orderto servethat settlement,for instance.341
(c) TheWall mav not be divertedto protect annexedterritom in
East Jerusalem
468.
It is a peremptory principle of international law that territory may not be
acquired by the use of force. Israel has nonethelesspurported to annex East Jerusalem
and extensive areas around it. As was explained in Chapter 7, the Security Council
decided not to recognize the purported annexation of East Jerusalem. That
determinationbinds Member Statesunder Article 25 of the UnitedNations
The diversion of the Wall fiom the Green Line in this area is a plain attempt, further
to long-establishedIsraeli policies and practices, to ignore that binding determination
(which sets out the position which is anyway clearly established in internationallaw)
and to treat the annexedterritoryin Jerusalem as if it had sovereigntyover it.
340 See Chapter 7, above, and Append1.
341 See the UN Commission on Human Rights, Resolution 200317of 15April2003.
342 Legal Consequencesfor States of the ContinuedPresence of South Africain Namibia (South
WestAfrica)notwithstandingSecurity CouncilResolution276 (1970),Advisory Opinion,I.C.J.Reports
1971,p. 16at 53.469.
The position in relation to that part of the Wall that protects East Jerusalem
is, accordingly, similar to that in relation toose parts of the Wall that protect illegal
Israeli settlementsin the West Bank. As Israel has no proprietorialrights in that area
of the Occupied Palestinian Territory, it cannot divert the course of the Wall away
fromthe Green Line to protect that area as such.
(d) There is no justification for the constructionof the Wall in the eastem
part of the West Bank
470. What possible reason could there be for continuing the route of the Wall
inside the eastem boundary of the West Bank? The easternborder of the West Bank is
Palestine's boundary with Jordan. There can scarcely be a fear of an attack coming
from the east: Israel and Jordan concluded a peace treaty in 1994. If there were a
threat from the OccupiedPalestinianTerritorytowards the east, it is Jordan,not Israel,
which would be threatened. If the fear is that bombers fi-omthe West Bank would
travel east, andthen north or south and into Israel by a roundaboutroute, and if a wall
is a suitable response, the obvious solution is to construct the Wall up to the Israeli
border with Jordan in the north and the south. Building the Wall inside the West Bank
alongthe Jordan Valley is patently notjustified by any consideration of security.
471. Palestine has in general not speculated here on Israel's motives for its
actions; but in this case it is difficult to see that theren be any reason behind the
proposed route of the Wall other than a desire to extend Israeli territory along the
Jordan Valley. This would be a further defacto annexationof territory, which would
enclave the West Bank, isolate it both fiom Gaza and fi-omJericho, and have a
dramatic and very serious detrimental effect upon Palestine's ability to exist as aviable State and have stable economic, social and political links with its neighbours.
Not only would it be lacking in any legal justification; it would also be a move
incompatible with Palestine's right to realise its self-determination in
i~~de~endence.~~~
(e) The Wall is an attemptto change the status of the OccupiedPalestinian
Territorv,includinnEast Jerusalem
472. Israel has no need to build the Wall for security reasons in the Occupied
Palestinian Territory. The Wall appears to be an attempt to change the legal status of
the OccupiedPalestinianTerritory,includingEast Jerusalem.
473. The prohibition on changes to the status of occupied temtory is a
fundamental rule of internationalhumanitarian law and a corollary of the prohibition
on the acquisitionof territory by force. Its breach is a distinct andriousviolation of
internationallaw. The rule has beenrepeatedlyand forcefullyreaffirmed, specifically
in relation to the Occupied Palestinian Territory, including East Jerusalem, by the
SecurityCouncil.One exampleis Resolution446 (1979) which called:
"...once more upon Israel, as the occupying Power, to abide
scrupulously by the Geneva Convention relative to the Protection of
Civilian Persons in Time of War, of 12 August 1949, to rescind its
previous measures and to desist fiom taking any action which would
result in changing the legal status and geographical nature and
materially affectingthe demographiccompositionof the Arab territory
occupied since 1967, including Jerusalem, and, in particular, not to
transfer parts of its own civilian population into the occupied Arab
territory."
474. The concept of a 'change in the status of a territory' is not defined in the
Geneva Conventions or in any other authoritative international instrument. Its
343 Seebelow Chapter 10.meaning must be arrived at by consideration of the use of the term and the role that it
plays in the systemof internationalhumanitarian law.
475. The concept of a change in the legal status of a territory is plainly wider than
the concept of annexation. It would be absurd if a State could assert al1the rights of a
territorial sovereign over territory occupied by force and avoid the legal prohibition
on the forcible acquisition of territory by the device of avoiding a forma1transfer of
title and avoiding the language of sovereignty. Likewise, if the Security Council in
Resolution446had meant to confine its injunction to annexation,it could have said so
expressly,and in fewer words than it in factused.
476. The role of the prohibition within international humanitarian law also
underlines its breadth. The 'no change of status' principle is secured in the Fourth
Geneva Conventionby the dutyto respect the existing laws in the territory, reinforced
by the prohibition on the acquisitionof territory by use of
477. The 'status' of territoryis constituted by the system of legal rules that are
applicable in it and by the factual power to control events within the territory. In a
case where areas of territory are designated from which the residents are expelled, in
circumstances not permitted by Article 49 of the Fourth Geneva Convention, the
status of the territory is changed. So, too, in a case where residents are required to
obtain permits to remain in their homes, or to travel between their home and places of
work, education and healthcare, or any other parts of their territory, the status of the
territory is changed. The same is true when large numbers of citizens of the
OccupyingPower are implantedin the OccupiedPalestinian Territoryin areas marked
out for them by the Wall.478. Al1these changes in the legal regime of the Occupied Palestinian Temtory
have been, and are being, brought about as a result of the Wall, which renders the
changes more intractable and with time irreversible. Israel has stated that the Wall is
not intended to change the status of the territory that it cuts through and that the Wall
is intended to be temporary:345 but this is unconvincing. As the Rapporteur to the UN
HumanRights Cornrnitteenoted:
"the settlement structure in Gaza seems removable by negotiations on
final status in a mannerthat at present does not appear likely in relation
to the West ~ank"~~~
Precisely the same observation may be made about the Wall. The cost -estimated at
NIS 10 million per kil~metre~~'of the 788 km Wall- suggests something very
different from a temporary security measure designed to operate in the short period
before the enjoyment of Palestinian statehood is secured through the steps outlined in
the June 2003 'Road Map',which envisaged a final and comprehensive settlement of
the Israel-Palestinianconflictby 2005.~~~
479. The fears concerning the intended permanence of the Wall are borne out of
experience of Israel's past practicein relation to the Occupied Palestinian Territory.
As a report by the Israeli humanrights organization,B'Tselem,put it:
- -
344
345 UN Charter, Article2(4);UNGA Res. 2625 (XXV).
See Annex 1 to the Report of the Secretary-General,AIES-101248,24 November 2003,
included as Dossier no.52 accompanying theUN Secretary-General's submission.
346 UN Doc. E/CN.4/2001/121, 16 March 2001, paragraph 21, Annex 10in Annex Volume2
accompanying this Written Statement.
347 B'Tselem 2003 Report, p. 7, Annex 13 in Annex Volume 2 accompanying this Written
348tement.
See Report of the Secretary-General,AIES-101248,24 November 2003, paras. 28 - 31,
includedas Dossier no.52 accompanyingtheUN Secretary-General's submission. "In the past, Israel has used "requisition for military needs" orders as a
means to take control of Palestinian land to establish settlements.
These lands were never returned to their owners. It is now clear that
Israel did not intend to seize the land for a temporary period, but to
expropriateit permanently."349
480. Furthermore, the legal changes, and the restrictions on residence and
movement in the vicinity of the Wall, are already bringing about a clear change in the
demographic structure of the Occupied Palestinian Territory, not only in relation to
the illegal settler population but also in relation to the Palestinian population. In
Qalqiliya, for example, it is reported that around 600 shops and enterprises have
closed as a result of the construction of the ~a11,~~' and an estimated 6,000to 8,000
people have already lefl the area.351Faced with a choice of remaining in a walled-off
town, perhaps requiring residence permits, perhaps needing permission for daily
crossings of the Wall for work or education or medical care, and moving elsewhere,it
is unsurprising that there is increasing evidence of widespread displacement of the
population of the Occupied Palestinian Territory, including East Jerusalem, fiom
areas outsidethe Wall.
481. Coupled with the still-increasingnumber of people movinginto the unlawful
settlements, the change in the demographic structure of the Occupied Palestinian
Territory is dramatic. It is one of the most serious effects of the Wall, unlawfully
changing the 'factson the ground' in away that Palestineis powerless to prevent, and
difficult to reverse. It is de facto annexation of the area outside
which will be very
349 For extensive discussion on this subject, see B'Tselem 2002 Report, Annex 12 in Annex
350ume 2 accompanying this Wntten Statement.
351 Dugard Report (2003), para. 10.
Ziegler Report, para. 51.the Wall, coupled with a displacement of the population throughout the Occupied
PalestinianTerritory.
(f) Conclusionon Israel'sright to constructthe Wall
482. Palestine submits, accordingly,that Israel, as Occupying Power, has no right
to construct the Wall in the Occupied PalestinianTenitory, including East Jerusalem.
TheWall is an attemptby Israel unilaterallyto change the legal statusof the Occupied
Palestinian Territory through which it cuts. The construction of the Wall violates
internationallaw.
The effects of the Wall violate internationallaw and renderit a
(4)
disproportionatemeasure
483. The previous section focused on the absence of any necessity for the Wall,
such as is required as a precondition for the limited rights that Israel enjoys as the
Occupying Power. Even if a case could be made out that those requirements in the
relevant provisions of the law of occupation are met, that would not render Israel's
conduct lawful. International humanitarian law requires that measures taken by an
OccupyingPowerthat areprima facie lawfulmust nonetheless be proportionateto the
circumstancesthat create the necessity for the measures. The Wall being built in the
OccupiedPalestinianTemtory is a disproportionateresponse.
484. The effects of the Wall wereoutlinedin Chapter 6 above and are describedin
more detail in reports to the United Nations, of which some of those most directlyrelevant to these proceedings are annexed to this Written tat te ment .he'^ are
summarized in the following paragraphs, which are directed to two distinct legal
issues. First, the effects constitute distinct violations of particular rules of
international humanitarian law and of international hurnan rights law, both of which
are applicable in the Occupied Palestinian Territory, including East ~erusalem.~~~
International humanitarian law applies as a lex specialis, but does not exclude
international human rights law, which continues to apply.354In any case, some of
these rights are non-derogable, and must be respected in al1circumstances; and even
the other rights can only be derogated to the extent strictly required by the exigencies
of the situation, i.e., subject to a strict condition of proportionality. Second, the
hardship caused to the population of the Occupied Palestinian Territory, including
East Jerusalem, by these effects renders the Wall a disproportionate measure and
therefore incompatiblewith the law of occupation.
(a) The Wall violates the right to freedomof movement
485. The practical restrictions on freedom of movement arising from the Wall are,
in summary,as follows:
352
353 See Annexes 1-11and 14in Annex Volume2 accompanying this Written Statement.
354 See Chapter 8.
See Chapter 8. See Ziegler Report, para. 25: "United Nations bodies have also repeatedly
reaffirmed the applicabilityofan rights law in the OPT, including the Security Council (resolution
237 (1967)) and the Special Rapporteurof the Commission onan Rights on the situation ofhuman
rights in the OPT, John Dugard (see E/CN.4/2002/32 [This repisreprinted as Annex 2 in Annex
Volume 2 accompanying this Written Statement]), the Committee on Economic, Social and Cultural
Rights and other treaty bodies. This is also reaffirmed in the 1995 Israeli-Palestinian Intenm
Agreement on the West Bank and the Gaza Strip (art. XIX)." See also the decision of the Inter-
American Commission on Human Rights on Precautionary Measures in Guantanamo Bay, Cuba, 12
March 2002,41 ILM 532 (2002);Loizidou v. Turkey, European Court ofHuman Rights, SerA,sNo.
310,paragraph 62(1995).. a. Physical prevention of movement within the Occupied Palestinian
Territory, including East Jerusalem, by the Wall, in extreme cases by
the walling-in of towns in enclaves;
b. Imposition of unjustifiably lengthy detours and delays on movements
within the Occupied PalestinianTerritory,including East Jerusalem;
c. Arbitrary and unpredictable access through gates in the Wall, isolating
people, land and property outside the Wall fiom those inside;
d. Imposition of restrictions on movementupon Palestinian people in the
area around the Wall in a discriminatoryand degrading manner.
486. The right to fieedom of movement is secured by Article 12 of the
InternationalCovenanton Civil and PoliticalRights.That provision stipulatesthat:
"1. Everyone lawfully within the territory of a State shall, within that
territory, have the right to liberty of movement and fieedom to choose
his residence.
2. Everyoneshallbe fiee to leaveany country, includinghis own.
3. The above-mentioned rights shall not be subject to any restrictions
except those which are provided by law, are necessary to protect
national security, public order (ordre public), public health or morals
or the rights and freedoms of others, and are consistent with the other
rightsrecognized in the present ~ovenant.~~~
355
The Human Rights Committee has specified, notablyin its General Comments Nos. 27 and
29, the conditionsunder which such restrictions are permissible. The conditions include necessity and
proportionality. In paragraph 13 of General Comment No. 27, "Freedom of movement (art.l2)",
CCPR/C/21/Rev.l/Add.9 of 02 November 1999,it said "the restrictions must not impair the essenceof
the right...; the relation between right and restriction, betweennom and exception, must not be
reversed. The laws authorizing the application of restrictions shoulduse precise criteria and may not
confer unfettered discretion onse charged with theirexecution": cf., paragraphs 11to 18.In General
Comment No. 29, "States of Emergency (art.4) ", CCPR/C/21/Rev.l/Add.ll of 31 August 2001,
paragraph 1 it said "The restoration of a state of normalcy wherefull respect for the Covenant can
again be secured must be the predominant objectiveof a State party derogating from the Covenant":
cf., paragraphs,7 and 9. 4. No one shall be arbitrarily deprived of the right to enter his own
c0unt1-y."~~~
487. Restrictions on the right may be imposed under Article 12(3) only within
narrow limits. The UN Human Rights Committee stated that:
"The permissible limitations which may be imposed on the rights
protected under article 12 must not nulli@ the principle of liberty of
movement, and are govemed by the requirement of necessity provided
for in article 12,paragraph 3, and by the need for consistency with the
other rights recognized in the ~ovenant."~~'
488. Article 12 is subject to derogation in time of public emergency threatening
the life of the nation.358 Israel made, in 1991, a declaration derogating fiom the
Covenant,but only in respect of Article 9 of the Covenant (which concems arbitrary
detention). In any event, the Covenant does not allow an unfettered derogation fiom
obligations. Derogationsare only permitted:
"to the extent strictly required by the exigencies of the situation,
provided that such measures are not inconsistent with their other
obligations under intemational law and do not involve discrimination
solely on the ground of race, colour, sex, language, religion or social
~ri~in"~~'
356 The right to fieedom of movement isalso asserted in Article 13of the Universal Declaration
of Human Rights.
357 (Human Rights Committee, General Comment 27: Freedom of movement (Art.12) : UN
Doc. CCPR/C/21/Rev.l/Add Novem02er 1999, paragraph 2. See also paragraphs 14, 15 and 17 of
the General Comment: "(14) Article 12, paragraph3, clearly indicates that it is not sufficient that the
restrictions serve the permissible purposes; they must also be necessary to protect them. Restrictive
measures must conform to the principle of proportionality; they must be appropriate to achieve their
protective function; theymust be the least intrusive instrument amongstthose which might achieve the
desired result; and they must be proportionate to the interest to be protected. (15) The principle of
proportionality has to be respected not only in the law that frames the restrictions, but also by the
administrative and judicial authorities in applying the law. States should ensure that any proceedings
relating to the exercise or restrictionofrights are expeditious and that reasonsfor the application
of restrictive measures are provid...(17) A major source of concern is the manifold legal and
bureaucratic barriers unnecessarily affecting the full enjoyment of the rightsof the individuals to move
freely, to leave a country, includingtheir own, and to take up residence."
358 International Covenanton Civil and Political Rights, Article 4.
359 International Covenant on Civil and Political Rights, Article 4. Cf., Article 2.1 of the
Covenant: "Each State Party to the present Covenant undertakes to respect and tosure to al1
individuals within its territory and subject to its jurisdiction the rights recognized in the present489. The regime of the Wall plainly goes beyond what is "strictly required by the
exigencies of the situation." That is evident fi-omits route, and from the practice of
the Israeli authorities in operating controls at the Wall, as described in Chapter 6
above and in the United Nations reports annexed to this Written Statement. The
violation of the fi-eedomof movement reaches an extreme form in Palestinian towns
such as Qalqiliya, which are completely surrounded by the Wall and Israeli
roadblocks. They have become isolated enclaves, cut off fi-om the Occupied
PalestinianTerritoryboth inside and outside the Wall.
490. Moreover,as was explained in Chapter 6, the regime of the Wall is explicitly
discriminatory,imposingupon Palestiniansrestraints that are not imposedupon Israeli
citizens or those prospectively entitled to Israeli citizenship. This discriminatory
aspect of restrictions on movement in the Occupied Palestinian Territory was the
subject of criticism by the Committee on Economic, Social and Cultural Rights even
before the Wall was begun. The Cornmitteenoted "with concem thatthese restrictions
apply only to Palestinian and not to Jewish Israeli ~itizens."~~T' hat is not to Saythat
the restrictionswould be lawful if they applied to Palestinians and Israelis alike. The
restrictions are unlawful because they are unnecessary and disproportionate. Their
discriminatoryaspect, which extends across a wide area including rights of residence
and acquisitionof land, does, however, aggravate the seriousness of the violation of
the rights securedby the Covenant.
Covenant, without distinction of any kind, such as race, colour, sex, language, religion, political or
360er opinion,national or social origin,property,r other status."
UN Doc. E/C.12/1/Add.27,4 December 1998,paragraph 17.
218491. Internationalhumanitarian law does not itself prescribe a specific fieedom of
movement. Rather, it regulates the right of an Occupying Power to impose
restrictions upon the population of occupied territory. The first limitation is that any
changeto the law of the occupiedterritorymust be:
"essential to enable the OccupyingPower to fulfil its obligations under
[the Fourth Geneva Convention], to maintain the orderly government
of the territory, and to ensure thésecurity of the Occup$ng Power, of
the members and property of the occupying forces or administration,
and likewise of the establishment and lines of communicationused by
them."361
492. That obligation is also reflected in Article 43 of the Hague Regulations,
which obliges the Occupying Power to fulfil its duties concerning the restoration and
maintenance of public order "while respecting, unless absolutely prevented, the laws
in force in the country."
493. In addition to the overriding need to demonstrate the absolute necessity of
new restrictions on the population, in adopting and applying measures the Occupying
Power must treat the people "without any adverse discriminationbased, in particular,
on race, religion or politicalopinion."362It must secure for them as normal conditions
of life as possible.
494. Those requirements stipulated by the Fourth Geneva Convention are
routinely violated by Israel in the building and operation of the Wall. Again,
descriptionsof these practices are setout elsewhereand will not be repeatedhere.
495. The restrictions on movement lead to violations of other fundamentalrights
protected by international law, notably the rights to earn a livelihood, to access to
361
362 Fourth Geneva Convention, Article64.2.
Fourth Geneva Convention,Article 27.food, to access medical care and education, to family life, and the right to self-
determination. The sweeping consequences of the limitations on movement were
noted by the SpecialRapporteur of the UN Commissionon Human Rights on the right
to food,who reportedas followsin October 2003:
"An unprecedented level of restrictions on the movements of
Palestiniansinside the Occupied Territory is deprivingPalestinians not
only of their freedom of movement, but also of their right to food. The
extensive imposition of curfews, road closures, permit systems,
security checkpoints and 'back-to-back' truck off-loading systems,
which require that most trucks be off-loaded on one side of a
checkpointand reloaded ont0 another truck on the other side, imposed
by the occupyingmilitary forces are producing the humanitarian crisis.
The USAID-funded study argues that 'The onset of the Intifada in
September2000 and the subsequent Israeli military incursions, closure
and curfewshave devastated the Palestinian economy and undermined
those systems the Palestinian civilian population relies on for basic
needs, including food and health'. The World Bank agrees that 'the
proximate cause of the Palestinian economic crisis is closure'.
Restrictions on movement mean that many Palestinians cannot feed
themselves: they cannot go to work, go to harvest their fields or go to
buy food. For manyPalestinians, the inability to feed their families is
leading to a loss of human dignity, often heightened by bullying and
humiliationat ~heck~oints."~~~
496. The rights to earn a livelihood, to access to food, to access medical care and
education,andto familylife, are addressedin the followingparagraphs.
The Wall violates the right to earn a livelihood
(b)
497. The impact of the Wall upon the communities in the Occupied Palestinian
Territory,and in particular its economicimpact, is the subjectof a continuing series of
studies, commonly known as the 'World Bank reports', commissioned by the
'international donor community (through the Humanitarian and Emergency Policy
Group ('HEPG'), consisting of the European Union Presidency, the European
363 UN Doc. E/CN.4/200411OlAdd.2,1 October2003, paragrap11.
220Commission, the Government of Nonvay, the U.S. Government, UNSCO, and the
World Bank), plus the International Monetary Fund. Four of the reports, dating from
May, July, September and November 2003, are included in the dossier submitted by
the UN Secretary-Generalto the A fiuther report is due to be published by
31January 2004, but is not yet available. These reports are based upon extensive and
detailed studiesof the position on the ground.
498. The picture that emerges fi-om those reports is the same as that which
emerges fiom other reports to UN bodies. The Wall separates Palestinianproprietors
fiom the land that they own and farm. Even if proprietors themselves have access to
their lands, the tending and harvesting of produce almost always requires that other
workers and suppliers also have access to the land; and the Wall is impeding it. In
some cases the Wall is preventing water reaching crops or animals. Al1 of these
effectsunderminethe abilityof Palestiniansto earn a livelihood.
499. Access to crops and access of the crops to markets is not a matter in which
time is irrelevant. The harm inflicted by delays may be irremediable. The Special
Rapporteuron Food reportedas follows:
"Journeys thatwould have taken a few minutes now take severalhours
or days ... The movement of goods is controlled by the back-to-back
off-loading system. With numerous checkpoints, this dramatically
increases the costs of transporting food and agricultural produce.
Permission to cross at checkpoints for agricultural produce and other
food can be refused for days without explanation. At various
checkpoints in the West Bank, the Special Rapporteur saw truckloads
of fmit and vegetablesrotting under the sun."
364
Secretary-General'sDossierno. 85 to 88.
221500. The Palestinian economy is being wrecked by the restrictions on movement
in the Occupied Palestinian Territory. Those restrictions are now being made
permanent in the Wall that is being built through the Occupied Palestinian Territory.
They affect al1sectors of the economy. If workers earn no money, they have none to
spend in shops which employ other workers, and al1of which depend on those in
service and other sectors of the economy. But such wide-ranging effects are not
simply indirect: al1 the Palestinian people in the Occupied Palestinian Territories
directly face the difficulty travelling to and fi-omtheir place of work, or to find work,
unless they stayvery closeto their homes.
501. Parties to the International Covenant on Economic, Social and Cultural
Rights, including Israel, are bound to recognize the right of al1individuals to gain a
living.Article 6 of the Covenantreads as follows:
"1. The States Parties to the present Covenant recognize the right to
work, which includesthe right of everyone to the opportunity to gain
his living by work which he freely chooses or accepts, and will take
appropriatestepsto safeguardthis
502. States Parties to the Covenant are obliged, by Article 2(1), to "take steps ...
to the maximumof its availableresources, with a view to achievingprogressively the
full realization of the rights recognized in the ... Covenant", and in Article 2(2) to
guarantee that the rights "will be exercised without discrimination". The UN
Committee on Economic, Social and Cultural Rights, explained the nature of the
obligations under the Covenant:
365
States Parties to the Covenant are permitted to subject Covenant nghts to limitations
determined by law, but "only in so far as this may be compatible with the nature of these rights and
solely for theurpose of promoting the general welfare in a democratic societyInternational
Covenant on Economic, Social and Cultural Rights, Article 4. "(1)...while the Covenant provides for progressive realization and
acknowledgesthe constraints due to the limits of availableresources, it
also imposes various obligations which are of immediate effect. Of
these, two are of particular importance in understanding the precise
nature of Statesparties' obligations.One of these.. .is the "undertaking
to guarantee" that relevant rights "will be exercised without
discrimination ..."
(2) The other is the undertaking in article 2 (1) "totake steps",which in
itself, is not qualifiedor limited by other considerations. ...
(9) The principal obligation of result reflected in article 2 (1) is to take
steps "with a view to achievingprogressively the full realization of the
rights recognized" in the Covenant. ..It thus imposes an obligation to
move as expeditiously and effectively as possible towards that goal.
Moreover, any deliberately retrogressive measures in that regard would
require the most careful consideration and would need to be fully
justified by reference to the totality of the rights provided for in the
Covenant and in the context of the full use of the maximum available
re~ources.''~~~
503. The Wall has severely limited rights of movement within the Occupied
Palestinian Territory. Palestine submits that Israel, as a State Party, is under an
obligation not to adopt regressive laws, policies or practices, running contrary to the
purposes of the Covenant, which hamper or obstruct the exercise of rights under the
Covenant. Where individuals are prevented from earning a livelihood by physical or
legal constraints that are not justified as proportionate responses to a threat to public
order (or to the rights of another individual), the right to a livelihood is violated.
The Wall violates fundamentalrights to welfare
(c)
504. There are several rights that may be grouped together under the heading of
'rights to welfare', which it is convenient to treat together. These are the rights to
366
Committee on Economic, Social and Cultural Rights, General Comment 3, 'The nature of
States parties obligations (Art. para.1 of the Covenant)' (Fifth session, 1990), Compilation offood, the right of access to medical care, and the right of access to education. These
are addressedin turn in the followingparagraphs.
505. The effect of the Wall in preventing agricultural production and trade has
been noted. So have restrictions on mobility that make it difficult or impossible to
earn money to buy food, and even to travel to neighbouring towns to buy food. The
expropriation and confiscation of agricultural land to build the Wall also is
threateningthe right to food.367 In various ways, the Wall is having asignificanteffect
upon the abilityof the Palestinianpeople to feed themselves.
506. A report submittedto the UN Commission on Human Rights on 31 October
2003 states that over 22% of Palestinian children under five years of age suffer fiom
malnutrition and around 15.6% of those under 15 suffer fiom acute anaemia. Food
consumption has fallen by 25-30% per capita; and more than half of Palestinian
households eatonly onceper day.368The samereport statesthat:
"...approximately280 rural communitiesin the OPT ...have no access
to wells or running water and are completely dependent on water
deliveredby municipal and private water tankers that frequentlyhas to
be purchased from the Israeli water Company,Mekorot. The price of
such water has risen by up to 80 per cent since September 2000 as a
result of the increase in transport costs due to closures. The quality of
most water brought in by tanker no longer meets World Health
Organizationdrinkingwater qualitystandards."369
507. Not al1 of these effects are attributable to the Wall. Some arise from
restrictions on movement elsewhere in the Occupied Palestinian Territory. But they
General Comments and General Recommendations Adoptedby Hurnan Rights Treaty Bodies, U.N.
367. HRI\GEN\l\Rev.1 at 45 (1994).
368 Ziegler Report, para. 16.
369 Ziegler Report, para. 9.
Ziegler Report, para. 14.demonstrate what the effects of restrictions on movement are; and the Wall is
consolidating those restrictions in a structure that divides the Occupied Palestinian
Territory into several enclaves in a more absolute and permanent manner than any
measurespreviously taken by the Israeli Government.
508. Israel has a legal duty, as the Occupying Power, to ensure food and water
supplies to the population of the Occupied Palestinian Territory, including East
Jerusalem,to the fullest extent of the means availableto it.370
509. The UN Special Rapporteur on the Right to Food concluded that Israel was
violatingthat obligation:
"As the occupying Power, the Governmentof Israel has obligations to
ensure the right to food of the Palestinian people. The Special
Rapporteur believes that the actions being taken in the OPT by the
occupyingforces violate the right to food. .....
The effective 'imprisonment' of certain communities, such as
Qalqiliya, by the new security fence / apartheid wall must be halted
immediately."37
510. The effects of the Wall in preventing students and teachers fiom attending
places of education are noted in Chapter 6 and in many of the reports in the UN
Secretary-General's~ossier.~~~So, too, have the effects of restraints on movement in
preventing ambulancesand patients fiom reaching hospitals and medical centres, and
preventing medical stafffromreaching patients.373
370 Fourth Geneva Convention, Article55. Cf., InternationalCovenant on Economic, Socialand
Cultural Rights, Article 11;Universal Declaration onights, Article 25.
371 Ziegler Report,paras. 58, 59.
372 SeeDossier nos.55,56 and 85-88 accompanyingthe UN Secretary-General's submission.
373 See the reportsrepnnted in Annex Volum2,as Annexes 1-6,9 and 14, includedas Dossier
nos. 56 and 85-88 accompanying the Secretary-General's submission.511. The Wall thus violates rights to food and water, to education, and to medical
care. These rights should be enjoyed by al1Palestinians; and they are secured with
particular rigour for children by the 1989 Convention on the Rights of the Child, to
which Israel is a
512. ' These effects are, furthermore, incompatible with Israel's obligations
assumed by it under the International Covenant on Economic, Social and Cultural
~i~hts.~~~ The welfare rights established in that Covenant are not absolute, in the
sense that every State Party to the Covenant is bound to secure them fully for every
individual. The rights are, however, progressive; and the UN Commission on
Economic, Socialand CulturalRightshas explained that every StatePartyhas:
"(10) ..a minimum core obligation to ensure the satisfactionof, at the
very least, minimum essential levels of each of the rights is incumbent
upon every State party. Thus, for example, a State party in which any
significant number of individuals is deprived of essential foodstuffs, of
essential primary health care, of basic shelter and housing, or of the
most basic forms of education is, prima facie, failing to discharge its
obligationsunder the Covenant." 376
513. Palestine submits that States Parties are under an obligation not to adopt
regressive laws, policies or practices, running contrary to the purposes of the
Covenant, and that where individuals are prevented from having access to food,
education and medical facilities by physical or legal constraints that are not justified
as proportionate responses to a threat to public order (or to the rights of another
374 See inparticular Articles24,27,28.
375 ICESCR Articles 12, 13.Cf., the Universal Declaration onHumanRights, Article 26.
376 Committee on Economic, Social and Cultural Rights, General Comment3, 'The nature of
States parties obligations (A2,.para.1 of the Covenant)' (Fifth session, 1990), Compilation of
General Comments and General Recornmendations Adopted by Human Rights Treaty Bodies, U.N.
Doc. HRI\GEN\l\Rev.l at 45 (1994).individual), the rights of access to food, education and healthcare are violated. It
submitsthat Israel's conduct also violates these rights.
(d) The Wall violates the riaht to familylife
514. By cornparisonwith the rights to fieedom of movement, to earn a livelihood,
and to welfare, the right to family may appear less important. That is not so.
Violation of the right to family life is capable of destroying communities, at the level
of the family,the town or village, and the nation.
515. The right to family life is affirmed in many international instruments. For
example, Article 17 of the International Covenant on Civil and Political Rights
stipulates:
"1. No one shall be subjected to arbitraryor unlawfül interferencewith
his privacy, family, home or correspondence, nor to unlawfül attacks
on his honour and reputation."377
516. The Wall is making it difficult or impossible for families, which are the
primary unit of social care in the Occupied Palestinian Territory, to continue to
function. It impedes visits to care for sick or infirm parents or children, or for child-
minding for working parents. It impedes social contacts and marriage and family-
building.Violation of the right to familylife is erodingthe basis of Palestinian society
in the OccupiedPalestinianTerritory.
377 The right is also secured by and Article 16of the Convention on theRights of the Child Cf.,.
Article3 of the Covenant, which stipulates that"[tlhe family is the natural and fundamental group unit
of society and entitled to protection by society and theState." The Wall is a forrnof collectivepunishment
(e)
517. The Wall strikes at Palestinian interests in the most fundamental way. It
strikes at the right to dignity of each individual ~alestinian.~'~The pervasive and
debilitating effect of being deprived of dignity in one's own country, particularly in
circumstanceswhere there is overt legal discrimination in favour of unlawful civilian
settlements,is one of the hardest to bear of al1the indignities and hardships to which
the Palestiniansare forciblyexposed.
518. These hardships are imposed, not upon those who have committed or who
are suspected of planning attacks, but upon the entire non-Israeli population of the
Occupied Palestinian Territory. The existence of the Wall renders life in the
Occupied PalestinianTerritory insecure and unpredictable. It disrupts life, and makes
travel over even short distances dependent upon the whims of young, armed soldiers
manningthe checkpoints.
519. Al1of the violations surnmarized above affect the Palestinian population of
the Occupied Palestinian Territory at large. The effects are neither confined to, nor
even targeted at, identified wrongdoers. They are collective measures of intimidation
and punishment of the population. This is incompatiblewith Article 33 of the Fourth
Geneva Convention, which stipulates that "[c]ollective penalties and likewise al1
378 Article 1 of the Universal Declaration ofHuman Rights proclaims that: "Al1human beings
are bom free and equal in dignity and rights. They are endowed with reasonand conscience and should
act towards one another in a spirit of brotherhood." The preamble of the Declaration declared that
"recognition ofthe inherent dignity and of the equal and inalienable rights ofof thehuman
family is the foundation of freedom,justice and peacein the world."measures of intimidation or of terrorism are prohibited", and Article 75 of Additional
Protocol 1,which in this respect at least representscustomaryinternational iaw.379
520. The same conclusion was reached in respect of restrictions on movement in
the Occupied Palestinian Territory generally by the Special Rapporteur of the
Commissionon Human Rights, who reported that:
"...checkpoints divide the West Bank into a patchwork of cantons.
Since March 2002, permits have been required to travel from one
district to another. ..... These measures have not prevented the
movement of militants between different towns or regions or between
Palestine and Israel. They do not protect settlementswhich are already
well protected by the IDF. Instead, internalcheckpointsrestrict internal
trade within the OPT and restrict the entire population from travelling
fromvillage to village or town to town. They must therefore be seen as
a form of collective punishment."380
(f) The Wall violates prope* rinhts of Palestinians
521. The violations of international law discussed so far are al1general, in the
sense that they affect the entire population of the Occupied Palestinian Territory,
including East Jerusalem. There is a further category of violations that affects
specificPalestinians: the violations ofpropertyrights.
522. Chapter 6 described the taking and destruction of property that the
construction of the Wall has entailed and continues to entail. Property is taken, not
379 See Dieter Fleck (ed.), The Handbook of Humanitarian Law in Armed Conflcts, (OUP,
1995), section 507. Cf., the US Judge Advocate General's School, US Amy, Operational Law
Handbook, JA 422 at 18-2 (1977): "..the US views [inter alia, Article 75 of Additional Ilasocol
customary internationallaw.".
380
Dugard Report (2003), para. 19. See also Prof. Dugard's report dated29 August 2002 and
addendum dated 16 September2002, and his report dated 17December 2002, reprinted as Annexes 3,4
and 5 in Annex Volume 2 accompanying this Written Statement.just for the Wall itself, but also for the adjacent security zone, and for the siting of
supportingfacilities.
523. The right to the peaceful enjoyment of property is one of the rights most
firmly established in the jurisprudence of international human rights la~.~'l It is
recognized, for example, in Article 17 of the Universal Declaration on Human
~i~hts.~'~In international humanitarian law, the right is protected in the special
circumstances of a military occupation by the provisions on the requisitioning383and
the destructionof property.384
524. In so far as property is simply destroyed by Israel, by the bulldozing of fields
and orchards for example, the action is unlawful as wanton destruction not
necessitated by military operations, in violation of Article 53 of the Fourth Geneva
Convention.
525. Where Palestinianproperty is seized or requisitioned by Israel, the violation
is of a different nature. The illegality flows from two defects in the requisitioning.
First, as was shown above, it lacks any justification as action necessary to satisQ the
needs of the Israeli army. It is incompatible with Article 52 of the 1907 Hague
Regulations. That provision appliesthe broaderprinciple, itselfset out in Article 55 of
the Hague Regulations, that the Occupying Power is merely an administrator and
usufructuary of occupiedterritory.
526. Second, it is in many instances also unlawful because it violates basic
procedural rights of the owners. Notices of requisition are not necessarily served on
381
382 As reflected in, interalia,Protocol 1to the European Convention onHuman Rights.
"Article17. (1) Everyone has the right to own propertyalone as well as in association with
others.2) No one shall be arbitrarily deprivedof his property."owners: they may be affixed to trees or posts somewhere on the property. The
procedure for 'appeals' requires compliance with expensive and burdensome
formalities, and it was reported recently that "every appeal against the requisitioning
of land (numbering in the hundreds) made to the military Appeals Committee has
been rejected. So, too, have al1 the applications for relief fi-omthe Israeli High
The process of the takings violates basic procedural rights, firmly
established in international law. They are unlawful takings of property, and no
effecti rvmeedies are availableto those whose rights are violated.
527. Moreover, as has been noted, the effect of the Wall in preventing the use of
property by its owners constitutes a further category of violations of property rights.
Examples detailed elsewhere in this statement include the instances of owners being
forced to sel1 agricultural properties because they can no longer visit the property
sufficientlyfrequently to maintain it andkeep its produce ali~e.~~~
(g) The Wall violates the rinht of the Palestinianpeople to self-
determination
528. The Wall violates the right of the Palestinian people to self-determination,as
enshrined in common Article 1 of the two Covenants. This matter is addressed in the
following Chapter,but it is appropriate to refer to it here because the UN Cornmittee
on Economic, Social and Cultural rights has explicitly tied that matter to the
383
384 Hague Regulations, Article 52.
385 Fourth Geneva Convention, Article 53.
Details appear in Annex 1to The Impact of IsraelS Separation Barrier on ASfected West
Bank Communities:afollow-up report to the Humanitarian and Emergency Policy Group (HEPG)and
the Local Aid Coordination Committee, September 30, 2003. This report is dossier no. 87
accompanying the UN Secretary-General's submission.
386 B'Tselem 2003 Report, Annex 13 in Annex Volume 2 accompanying this Written
Statement.Covenant. In its Concluding Observations conceming a report submitted by Israel it
"39. The Committee urges the State party to respect the right to self-
determination as recognized in article 1 (2) of the Covenant, which
provides that 'in no waymay a people be deprived of its own means of
subsistence'. Closure restricts the movement of people and goods,
cutting off access to extemal markets and to income derived from
employment and livelihood. The Committee also calls upon the
Govemment to give full effect to its obligations under the Covenant
and, as a matter of the highest priority, to undertake to ensure safe
passage at checkpointsfor Palestinianmedical staff and people seeking
treatment, the unhampered flow of essential foodstuffs and supplies,
the safe conduct of students and teachers to and from schools, and the
reunificationof families separatedby cl~sures."~~'
(5) The Wall is notjustified by self-defence
529. Finally, turning to thejus ad bellum,Israel is reported to rely upon the right
of self-defencetojustifj the Wall. This argumentis misconceived.
530. First, the right of self-defenceas it has longbeen understoodis not applicable
to circumstances such as those prevailing in the Occupied Palestinian Territory,
including East Jerusalem. The requirements for a valid exercise of the right of self-
defence are well establishedin intemational law. There mustbe an armed attackupon
the State, which cm be prevented and which cm only be prevented by the taking of
forcible measures. The measures that may be taken in self-defence are, moreover,
strictly limited by the twin criteria of necessity and proportionality. The minimumof
force must be used, and even then it may be used only if the forcible measures
ernployedareproportionateto the harrnthat is to be a~erted.~~~
387
388 EIC.12/1/Add.27,4 December 1998,para. 39.
OilPlat$otms,I.C.J. Reports2003, paras. 43, 51, 57, 73-75.
232531. The construction of the Wall fails to meet these criteria at practically every
step. The violence in the Occupied Palestinian Territory is not on a scale or of a
nature equivalent to an 'armed attack' against Israel in the sense required for the
exercise of a right of self-defen~e.~" Self-defence in international law cannot be
triggered by individual criminal acts which cal1for police and prosecutorial action,
and not military action.
532. Furthermore, the right of self-defence applies so as to justiQ forcible
measures to ward off an attack that is in the course of being committed -an actual,
present attack. Some authorities extend the right to circumstanceswhere an imminent
armed attack has been commenced. No authority supports the view that the right of
self-defence extends so far as to provide ajustification for the taking of measures that,
far from being responsesto an actual or imminent attack,are prophylactic,preventive
measures intended to ensure that no attack can be put into effect. It is not a general
right for a State to takeforcible measures outside its territory in order to prevent the
commissionof crimeswithin the State.
533. The right of self-defence is, moreover, subject to the principle of
proportionality. The force used must be proportional to the actual or imminent harm.
As has been shown,the Wall is not a proportionate response to terrorist attacks.
534. The argument fails for a secondreason. The entitlementof States to use force
is accommodated and regulated by the Law of War, the jus in bello. The Fourth
Geneva Convention permits forcible measures against civilianpopulations, subject to
389
Ibid.strict limits. That exhausts the legal rights of an Occupying Power. A State may not
use al1of its powers under the Fourth Geneva Convention and the Laws of War and
then decide that those powers are inadequate and invoke the more general right of
self-defence, which belongs to thejus ad bellum, in order to avoid the constraints of
internationalhumanitarianlaw.
(6) Concludingremarks
535. This Chapter has sought to identifj the specific violations of international
humanitarian law and of international human rights law that result fiom the
construction and operation of the Wall in the Occupied Palestinian Territory,
including East Jerusalem. The next Chapter continues the legal analysis by
addressing the question of the violation of the Palestinian People's right to self-
determinationin internationallaw. Chapter 10. VIOLATIONS OF THE RIGHT OF THE PALESTINIAN
PEOPLETO SELF-DETERMINATION
536. The right of the Palestinianpeople to self-determinationclearlyrecognized
by the international community and the United Nations, and that right is gravely
violated by the construction of the Wall by Israel in the Occupied Palestinian
Territory.
(1) The right of the Palestinian people to self-determinationas recognized by
the internationalcommunityand the United Nations
537. The existence of the principle of equal rights and self-determination of
peoples is no longer a matter of dispute in international law. The matter was clearly
ascertainedby the Declarationon Principles of InternationalLaw concerningFriendly
Relations and Co-operation among States in accordance with the Charter of the
United Nations (Resolution2625(XXV) of 24 October 1970),which stated inter alia:
" By virtue of the principle of equal rights and self-determination of
peoples enshrinedin the Charter of the United Nations,l1people have
the right fieely to determine, without external interference, their
politicalstatus and to pursue their economic, social and cultural
development, and every State has the duty to respect this right in
accordancewith theprovisions of the Charter."
538. The Court has acknowledged that right inter alia in the following statement
in its Judgmentof 30 June 1995in the case concerningEast Timor:
"The principle of self-determinationof peoples has beenrecognizedby
the United Nations Charter and in the jurisprudence of the Court (see
Legal Consequencesfor States of the Continued Presence of South
Africa in Namibia (South West Afiica) notwithstanding Securiîy
CouncilResolution276 (1970),Advisory Opinion, I.C.J.Reports 1971, pp. 31-32, paras. 52-53; Western Sahara, Advisory Opinion, I.C.J.
Reports 1975, pp. 31-33, paras. 54-59); it is7390 of the essential
principlesof contemporaryinternational law.
539. The application of this principle to Palestine is also no longer in dispute. The
principle was rooted in UN General Assembly Resolution 181 (II) of 29 November
1947,which set forth a plan partitioning Palestine into two States, one Arab and one
Jewish, with an economic union between them and with Jerusalem as a corpus
separatum. It took some time, however, for the rights of the Palestinianpeople to be
fully establishedin the UnitedNations.
540. In its Resolution 2535 B (XXIV) of 10 December 1969, the General
Assembly stated that it " 1. [rleaffirms the inalienable rights of the people of
Palestine." In subsequent years, the General Assembly has consistently reaffirmed
that the Palestinians are a People and has specified their rights. Thus, in Resolution
2649 (XXV) of 30November 1970,the Assembly:
" 2. Recognizes the right of peoples under colonial and alien
domination in the legitimate exercise of their right to self-
determination to seek and receive al1 kinds of moral and material
assistance, in accordance with the resolutions of the United Nations
and the spirit of the Charterof the UnitedNations;
3. Calls upon al1 Governments that deny the right to self-
determination of peoples under colonial and alien domination to
recognize and observe that right in accordance with the relevant
internationalinstrumentsand the principlesand spirit of the Charter;
4. Considers that the acquisition and retention of territory in
contravention of the right of the people of that territory to self-
determinationis inadmissibleand a grossviolation of the Charter;
390 East Timor (Portugal v.Australia), Judgrnent, I.C.J. Reports 1995, p. 90, at p. 102,
para.29. 5. Condemns those Governments that deny the right to self-
determination of peoples recognized as being entitled to it, especially
of thepeoples of southern Africa and Palestine. "
541. The General Assembly in resolution 2672 C (XXV) of 8 December 1970
further "[r]ecognizes that the people of Palestine are entitled to equal rights and self-
determination,in accordance with the Charter of the United Nations." A further step
was taken with Resolution 3236 (XXIX) of 22 November 1974, in which the General
Assembly :
" 1. [rleaffirms the inalienable rights of the Palestinian people in
Palestine, including:(a) The right to self-determinationwithout external
391erference;@) The right to national independence and sovereignty "
542.
General Assembly Resolution ES 712(July 1980)in turn mentions expressly
among the inalienablerights of the Palestinianpeople:
"(b) The right to establish its own independent sovereign State".
543. Contemporaryresolutions of the General Assembly expresstheir full support
for the right of the Palestinian people to self-determination. For instance, in
Resolution 581163of 22 December 2003, which was adopted by a vote of 169 in
favour to five against (Israel, Marshall Islands, Micronesia, Palau, and the United
States of America), with no abstention,the General Assembly:
"Affirming the right of al1States in the region to live in peace within
secureand internationallyrecognized borders,
1. Reaffirms the right of the Palestinian people to self-determination,
includingthe right to their independent Stateof Palestine".
391
Other resolutions affirming the inalienable rights of the Palestinian people include:
AlRESl33124,29 November 1978; A/RES/34/44, 23 November 1979; AiRES/37/43, 3 December
1982; A/RES/38/17,22November 1983.544. The Security Council moved less quickly than the General Assembly. Thus,
Resolution242 (1967) of 22 November 1967,confirmedby Resolution 338 (1973) of
22 October 1973,affirmedthe followingprinciples
" (i) Withdrawal of Israel armed forces from territories occupied in the
recent conflict;
(ii) [..] respect for and acknowledgrnentof the sovereignty,territorial
integrity and political independenceof every State in the area and their
right to live in peace within secure and recognized boundaries fiee
fiom threats or acts of force".
545. In Resolution 1397(2002)of 12March 2002, the Council statedmore clearly
that Palestine is among the States in the region possessing the right to live within
secureboundaries:
" Afirming a vision of a region where two States, Israel and Palestine,
live sideby sidewithin secureand recognizedborders."
546. More recently, Resolution 1515 (2003) of 19 November 2003 quoted that
paragraph and addedthat the Council:
" 1.Endorses the Quartet PerformanceRoadmap to a Permanent Two-
State Solutionto the Israeli-PalestinianconflictS/2003/529);
2. Calls on the parties to fulfil their obligations under the Roadmap in
cooperation with the Quartet and to achieve the vision of two States
living sideby side inpeace andsecurity."
547. It is indisputable that when reference is made to the right of the Palestinian
people to self-determination,one is concerned with a people in a given territory: i.e.,
the Occupied Palestinian Territory, including East Jerusalem; in other words, al1the
Palestinianterritorieswhich were occupiedby Israel in 1967(2) The constructionof the Wall gravely infringes the right of the Palestinian
people toself-determination
548. It is submittedthat construction of the Wall gravely infringesthe right of the
Palestinianpeople to self-determination.As the above developmentsdemonstrate,the
construction of the Wall affects the exercise of the right of the Palestinian people to
self-determinationin the followingways:
a) To the extent that the Wall departs fiom the Green Line and is constructed in
the Occupied PalestinianTerritory, including in and around East Jerusalem, it
severs the territorial sphere over which the Palestinian people are entitled to
exercisetheir right of self-determination.To the same extent the Wall is also a
violation of the legal principle prohibiting the acquisition of territory by the
use of force;
b) The route of the Wall is designed to change the demographic composition of
the Occupied Palestinian Territory, including East Jerusalem, by reinforcing
the colonial Israeli settlements in the Occupied Palestinian Territory and
facilitating their extension- in disregard of the fact that these settlements are
themselvesillegal accordingto internationallaw;
c) By the creation of Palestinian enclaves, of discrimination against the
Palestinian population vis-à-vis the Israeli settlers, and of unbearable
economicconditions,the Wall is having the clear and foreseeableeffect of the
forced displacement of the Palestinian population into increasingly limited
areas regarded as safe and livable for Palestinians. The Wall is intended to
reduce and parce1out the territorial sphere over which the Palestinian people are entitled to exercise their right to self-determination. Such a policy aims at
establishingnon-contiguousPalestinian areas similarto Bantustans,prohibited
by internationallaw;
d) The Wallviolates the right of the Palestinianpeople to permanent sovereignty
over their natural resources in the Occupied Palestinian Territory, including
East Jerusalem, and destroys the economic and social basis of the life of the
Palestinianpeople;
e) The Wall endangers the feasibility of a viable State for the Palestinian people
and consequently undermines future negotiations based on the 'two State'
principle.
(a) The Wall seversthe territorial sphereover which the Palestinianpeople
are entitled to exercise their right to self-determinationand constitutes
a violation of the legal principle prohibiting the acquisition of territory
bv the use of force
549. The link between the right of the Palestinian people to exercise self-
determination over the whole of the Occupied Palestinian Territory, including East
Jerusalem, and the construction of the Wall is well established by the Special
Rapporteurof the Human Rights Commission,Professor John Dugard, in his reportto
the Commission on the situation of human rights in the Palestinian territories
occupiedby Israel:
"15. The right to self-determinationis closely linked to the notion of
territorial sovereignty. people can only exercise the right of self-
determinationwithin a territory.The amputationof Palestinianterritory
by the Wall seriously interfereswith the right of self-determinationof
the Palestinian people as it substantially reduces the size of the self-
determination unit (already small) within which that right is to be
exerci~ed."~~~
392 Dugard Report(2003), para. 15.
394 Ibid. para. 14.550. At the same time, the Wall amounts to an incorporation of a significantpart
of Palestinian land into the territory of Israel, and consequently a violation of the
principleprohibitingthe acquisitionof territory by the use of force and the acquisition
of territory by annexation. Here again, Professor Dugard's report describes the
situationaccurately:
" 14. [..] the wall is manifestly intended to create facts on the ground.
It may lack an act of annexation, as occurred in the case of East
Jerusalem and the Golan Heights. But its effect is the same:
annexation. Annexation of this kind goes by another name in
international law - conquest. Conquest, or the acquisition of territory
by the use of force, has been outlawed by the prohibition on use of
force contained in the Kellogg-Briand Pact of 1928 and Article 2,
paragraph 4, of the Charter of the United Nations. The prohibition of
the acquisition of territory by force applies irrespective of whether the
territory is acquired as a result of an act of aggression or in self-
defence. The Declaration on Principles of International Law
concerning Friendly Relations and Cooperation among States in
accordance with the Charter of the United Nations (General Assembly
resolution 2625 (XXV) of 24 October 1970, annex) declares that 'the
territory of a State shall not be the object of acquisition by another
Stateresulting fiom the threat or use of force. No territorial acquisition
resulting fiom the threat or use of force shall be recognized as legal'.
This prohibition is confirrned by Security Council resolution 242
(1967) and the Oslo Accords, which provide that the status of the West
Bank and Gaza shall not be changed pending the outcome of the
permanent status negotiations. The Geneva Convention relative to the
Protection of Civilian Persons in Time of War (the Fourth Geneva
Convention) provides that protected persons in an occupied territory
shall not be deprived of the benefits of the Convention 'by any
annexation ...of the occupiedterritory' (art. 47)."394
551. This point of view is unquestionably shared by the General Assembly of the
United Nations, whose Resolution ES-10113 of 21 October 2003 reaffirms in its
Preamble "the principle of the inadmissibility of the acquisitionof territory by force."552. Several delegations came to the same conclusions in their speeches before
UnitedNations organs:
- France:
"The permanent nature of the wall means that the territories between
the wall and the Green Line will be de facto incorporatedby Israel and
under its control. Moreover, the inadmissible nature of the acquisition
of territory by force is a fundamental principle of Security Council
resolution 242 (1967),on which the peace process is ba~ed."~~'
- Jordan:
"We condemn the construction of the separation wall, which
entrenches the Israeli occupation of the Palestinian territories, devours
more land and imposes a de facto situation on the future Palestinian
State, in the sense that it cuts deeply into the Palestinianterritories and
does not confonn to the Green Line of June 1967. The completion of
the wall means the annexation of more than 10per cent of the land of
the West Bank to Israel and the imprisonment of more than 95,000
Palestinian citizens between the wall and the Green Line of June
1967." 396
- Malaysia, on behalf of the Organizationof the IslamicConference:
"The construction of the wall itself constitutes a flagrant violation of
international law and international humanitarian law, as it seeks to
effectively alter the territorial integrity of the West Bank and
accomplish the de facto annexation of the occupied Palestinian
territory."397
- Islamic Republicof Iran, onbehalf of the Organizationof the Islamic Conference:
"The Israeli regime's buildingof a separation wall deep into occupied
Palestinianterritory,together withthe continuedconstructionof Jewish
settlements in the same occupied territory, is a further violation of
international law and of the basic rights of the Palestinianpeople. It is
395 UN Doc. SPV.4841,p. 18.
396 SPV.4841,p. 31.
397 SPV.4841, p.41. another means for achieving the Israeli goal of depriving the
Palestinians of their inherent national rights and, as such, it is having a
serious impact on al1aspects of the Palestinian question. "398
553. Numerous other States have made declarations asserting a similar position:
for example, ~uinea;~' Libyan Arab ~arnahiri~a:'~pakistan;02 Syrian Arab
~e~ublic;~~South~frica;'~ pakistan;O5and ~imbabwe.~'~
554. The Quartet of the U.S., Russian Federation, European Union and the United
Nations expressedthe same opinion in its statement of 26 September 2003:
398 General Assembly, Emergency Special Session, 21st meeting, 20 October 2003, AIES-
10PV.21, p. 14.
399 " The building of the separation wall, the expansion of settlements and the construction of
security routes between the settlements and Israel constitute a clear territorial expansion, to the
detriment of the Palestinian people and its inalienable right to enjoy self-determination and to establish
its own independent and sovereign State " (SPV.4841, pp. 29-30).
400 " Clearly, the separation wall, whose route cuts seriously and deeply into Palestinian
territories, is a pernicious way to continue and expand the settlement of occupied territories and to
deprive the Palestinian people of a temtorial element that is essential to the full exercise of its
401ereignty " (SPV.4841, p. 17).
"The Security Council is meeting today to discuss the problem of the separation wall being
built in the occupied Palestinian temtories as a security construction but which is in reality a part of
402ael's long-term plan to annex additional territoriesby force "(SRV.4841, p. 38).
"It is imperative to recognize that the separation wall is an unlawful annexation of occupied
Palestinian territory " (SRV.4841, p. 22).
403 "The building of the expansionist wall is nothing but a continuation of Israeli colonialist
activities. [...] It is also a violation of the firm principle of international law that prohibits the
acquisition of the territories of others by force" (General Assembly, Emergency Special Session, 21st
meeting, 20 October 2003, AIES-1OPV.21, p. 9).
404 "We believe that Mr. Dugard [the Special Rapporteur of the Commission on Human Rights
on the situation of human rights in the Palestinian territories occupied by Israel since 19671is correct in
his assertion that we should avoid political euphemisms and rather state in precise and legally accurate
terms that 'what we are presently witnessing in the West Bank is a visible and clear act of territorial
405exation under the guise of security' " (SlPV.4841, pp. 35-36).
"The separation wall is being built in clear violation of international law and Israel's
commitments under bilateral and international agreements. The wall does not follow the so-called '
Green Line' and in effect cuts deep into Palestinian lands. Assuch, it runs contrary to the fundamental
principle of international law, which deems illegal the acquisition of territory by the use of force "
(General Assembly, Emergency Special Session, 21st meeting, 20 October 2003, AIES-1OPV.21,
p. 17).
406 "The building of the wall, which ignores the legitimate concerns of the Palestinian people,
has resulted in the confiscation of Palestinian land, destruction of their livelihoods and annexation of
their land. People have been cut off from their farmlands, work places, schools, health facilities and
other social services" (General Assembly, Emergency Special Session, 21st meeting, 20 October 2003,
AIES-1ORV.21,p. 20). "The Quartet members reaffirm that, in accordancewith the road map,
settlement activity must stop, and note with great concern the actual
and proposed route of Israel's West Bank fence, particularly as it
results in the confiscationof Palestinianland, cuts off the movement of
p-op-e and goods and undermines Palestinians' trust in the road map
process, as appears to prejudge final borders of a future ~alestinian
State."408
(b) The route of the Wall is designed to change the demopraphic
composition of the Occupied Palestinian Territory, including East
4
their extension - in disregard of the fact that these settlements are
illegal accordinnto internationallaw
555. It has been shown in Chapters 4 and 6, and in the annexed United Nations
reports, that the Wall entrenches the Israeli settlements in the Occupied Palestinian
Territory. The link between the construction of the Wall and the protection and
extension of settlements is again well established by the Special Rapporteur of the
Human Rights Commission,Professor John Dugard, in his report to the Commission
on the situationof humanrights in the Palestinianterritoriesoccupiedby Israel:
"Like the settlements it seeks to protect, the Wall is manifestly
intendedto create facts onthe ground."410
556. Although said in a veiled way, the speech made by Israeli Prime Minister
Ariel Sharon at the "Herzliya Conference" on18 December 2003, seems to confirm
that the Wall is intended to include in Israel a substantial part of the Israeli
408 Quartet statement,New York, 26 September2003, Annex to theLetter dated 6 October 2003
from the Secretary-Generaladdressed to the Presidentof the Security Council,51.
410
Dugard Report(2003),para.14.settlements, which lie between the Wall and the Green Line, in accordance with
Israel's unilateral"DisengagementPlan" :
"The DisengagementPlan will includethe redeployment of IDF forces
along new security lines and a change in the deployment of
settlements, which will reduce as much as possible the number of
Israelis located in the heart of the Palestinianpopulation. We will draw
provisional security lines and the IDF will be deployed along them.
Security will be provided by IDF deployment, the securitv fence and
otherphysical obstacles."411
557. The fact that the Wall is primarily conceived to reinforce the colonial
settlements of Israel in the Occupied Palestinian Tenitory, including East Jerusalem,
is evidencedby the statementsof many delegations.For e~am~le:~'~
- European Union: PresidencyConclusions,Copenhagen European Council, 12and
13December2002 :
" [...] In this context, the European Council is alarmed at the
continuing illegal settlement activities, which threaten to render the
two-State solution physically impossible to implement. The expansion
411 ZnP.M. Speeches, text availableat http://www.first.gov.il/first/english/Ht
412
See also the statements made by the following delegations :
- Syrian Arab Republic: " Israel plans to enclose within the wall large settlements established in
occupied Palestinian temtories, containing more than 200,000 settlers. Thus, Israel is not only violating
the Fourth Geneva Convention by building those settlements but goes even further by annexing those
settlements to Israel. [..] Those actions are, in fact, war crimes under the Fourth Geneva Convention
and its Additional Protocol 1. Therefore, Israel should be deterred from continuing and no legal or
political legitimacy should be granted to its actions " (SlPV.4841, p. 12).
-Libyan Arab Jamahiriya : " The construction of the wall is also an attempt by Israel to reaffirm its
annexation of East Jerusalem. Moreover, the Israeli occupying authorities are pursuing the
establishment of illegal settlements in occupied Palestinian territories, including East Jerusalem,thus
revealing their expansionist intentions and their offhand attitude towards intemational efforts to achieve
a peacefül solution to this problem " (SlPV.4841, p. 38).
-Saudi Arabia :" That plan seeks to erase and completely abolish the Green Line in several areas and
to annex the Israeli settlements to Israel, creating narrow alleys between cities and other populated
Palestinian areas, which the Israeli Govemment views as separate cantons that will be controlled by
Israel, which will allow the Palestinians to manage their own intemal affairs, so that Israel will be
spared the burden of a foreignpopulation " (SlPV.4841, p. 36).
-South Africa :" The acceleration of the construction of a separation wall, as well as the expansion of
illegal settlements on Palestinian land, is an act of annexation that is inconsistent with Israel's
obligations under the intemationally accepted road map of the Quartet " (General Assembly,
Emergency Special Session,21st meeting, 20 October 2003, AIES-1OPV.2 1, p. 12). of settlements and related construction, as widely documented
including by the European Union's Settlement Watch, violates
internationallaw, inflames an already volatile situation, and reinforces
the fear of Palestinians that Israel is not genuinely committed to end
the occupation.It is an obstacle to peace. The European Councilurges
the Governmentof Israel to reverse its settlementpolicy and as a first
step immediately apply a full and effective freeze on al1 settlement
activities. It calls for an end to further land confiscation for the
7,413
constructionof the so-called security fence. [..].
France :
"This will be a permanent structure that will permanently change
geographic and demographic data. The building of the wall can only
encourage the development of settlements and aggravate the already
seriousproblemsthat these are causing. " 415
RussianFederation :
"The unlawful settlement activity on the Palestinianterritories and the
constructionof the so-called separation wall, which has resulted in the
seizure of Palestinian lands, must be immediatelyhalted. Such actions
run counter to the concept of the establishment of two independent
States,Palestineand Israel 3.416
- Germany :
"Thus Germany urges the Government of Israel to halt its continuing
settlementactivities and stop the constructionof the so-called security
fence. While recognizing Israel's need for security, we consider the
security fence to be detrimental to the implementation of the road
map7'.417
413 European Council Declaration on The Middle East, Presidency conclusions, Copenhagen
European Council, 12 and 13 December 2002, Annex III, Doc./02/15, p. 13,
http://europa.eu.int/futunim/documents/other/othl21202en.pdf.See also the Declaration by the
Presidency, on behalf of the European Union, on the situation in the Middle East, 11 September 2003
" [...]The European Union urges the two parties to remain strongly committed to the need of an
ongoing dialogue and to the implementation of the road map, and, in this regard, to take theing
measures : [...] The Israeli govemment: [...] freezing al1settlement activities and the building of the
security wall along a track that jeopardises a political solution to the conflict " (P/03/108, 12400/03
(Presse 26l),
http://www.europa.eu.int/rapid~start/cgi/gesten.ksh?paction O.SIeIAgtE&docl =PE
C/03/1
g=EN&display).
415 SPV.4841, p. 18.
416
417 SPV.4841, p. 15.
SPV.4841, p. 19.- China :
"Israel must stop building the separation wall and stop expanding
settlement~."~~~
- Islamic Republic of Iran, on behalf of the Organization of the Islamic
Conference :
" The policy of building a wall is supplemental to the policy of
expanding illegal Jewish settlements in the occupied territory. The
illegal settlements in the West Bank, built against the will of the
international community, will benefit first and foremost fiom the wall.
Likewise, illegal Jewish settlements are expanding parallel with the
completionof the wall that perpetuatesracism. 3,420
558. The specific situation in the zone now between the Green Line and the Wall
should not lead one to overlook the fact that the Israeli policy of settlements -
wherever they might be located in the Occupied Palestinian Territory - is by itself a
violationof internationallaw, as is recognisedby numerous sources:
(I)Securiv Council resolutions
559. Numerous Security Council resolutions have declared the illegality of the
Israelipolicy of settlements.For example:
- Resolution446 (1979) of 22 March 1979 :
"The SecurityCouncil,
1. Determines that the policy and practices of Israel in establishing
settlements in the Palestinian and other Arab territories occupied since
1967 have no legal validity and constitute a serious obstruction to
achievinga comprehensive,just and lastingpeace in the Middle East;
419 S/PV.4841, p.20.
420 General Assembly, Emergency Special Session, 21st meeting, 20 October 2003, AIES-
lO/PV.21,p. 14. 3. Calls once more upon Israel, as the occupying Power, to abide
scrupulously by the 1949 Fourth Geneva Convention, to rescind its
previous measures and to desist from taking any action which would
result in changing the legal status and geographical nature and
materially affecting the demographic composition of the Arab
territoriesoccupied since 1967,including Jerusalem, and, in particular,
not to transfer parts of its own civilian population into the occupied
Arab territories."
- Resolution465 (1980), of 1March 1980:
"The SecurityCouncil,
5. Determines that al1measures taken by Israel to change the physical
character, demographiccomposition, institutional structure or status of
the Palestinian and other Arab territories occupied since 1967,
includingJerusalem,or any part thereof, have no legal validity and that
Israel'spolicy and practices of settling parts of its population and new
immigrants in those territories constitute a flagrant violation of the
Fourth Geneva Convention relative to the Protection of Civilian
Persons in Time of War and also constitute a serious obstruction to
achievinga comprehensive,just and lasting peace in the MiddleEast;
6. Strongly deplores the continuation and persistence of Israel in
pursuing those policies and practices and calls upon the Government
and people of Israel to rescind those measures, to dismantle the
existing settlements and in particular to cease, on an urgent basis, the
establishment, construction and planning of settlements in the Arab
territoriesoccupied since 1967,includingJerusalem;
7. Calls upon al1States not to provide Israel with any assistance to be
used specifically in connexion with settlements in the occupied
territories;
(ii) GenevalAssembly resolutions
560. Numerous General Assembly resolutions have established the illegality of
the Israeli policy of settlements. For instance, Resolution 3215of 28 October 1977
states: "The GeneralAssembly,
Expressinggrave anxiety and concem over thepresent serious situation
in the occupied Arab territories as a result of the continued Israeli
occupation andthe measures and actions taken by the Government of
Israel,as the occupying Power, and designedto change the legal status,
geographicalnature and demographiccompositionof those territories,
Considering that the Geneva Convention relative to the Protection of
CivilianPersons in Time of War, of 12August 1949,ll is applicableto
al1the Arab territories occupied since 5 June 1967,
1. Determinesthat al1such measures and actions taken by Israel in the
Palestinian and other Arab territories occupied since 1967 have no
legal validity and constitute a serious obstruction of efforts aimed at
achievingajust and lasting peace in the Middle East;
2. Strongly deplores the persistence of Israel in canying out such
measures, in particular the establishmentof settlementsin the occupied
Arab territories;
3. Calls upon Israel to comply strictlywith its intemational obligations
in accordance with the principles of international law and the
provisions of the Geneva Convention relative to the Protection of
CivilianPersons in Time of War, of 12August 1949;
4. Calls once more upon the Govemment of Israel, as the occupying
Power,to desist forthwith from takingany actionwhich would result in
changing the legal status, geographical nature or demographic
composition of the Arab territories occupied since 1967, including
Jerusalem. "
561. Particularlyrelevant is the latest General Assemblyresolution on this matter,
Resolution A158198of 9 December 2003, which emphasizes the linkage between
settlementactivities and the annexation of territory and the prohibition of that activity
in al1of the OccupiedPalestinian Territory,including East Jerusalem,on both sides of
the Wall :
"Israeli Settlements in the Occupied Palestinian Territory,
includingJerusalem, and the Occupied Syrian Golan
The GeneralAssembly,Reaffirmingthe applicability of the Geneva Convention relative to the
Protection of CivilianPersons in Time of War, of 12August 1949, 1to
the Occupied Palestinian Territory, including East Jerusalem, and to
the occupiedSyrianGolan,
Welcoming the presentation by the Quartet to the parties of the road
map to a permanent two-State solution to the Israeli-Palestinian
conflict,and noting its cal1for a freeze on al1settlementactivity,
Aware that Israeli settlement activities have involved, inter alia, the
transfer of nationals of the occupying Power into the occupied
territories, the confiscation of land, the exploitation of natural
resources and other illegal actions against the Palestinian civilian
population,
Bearing in mind the detrimental impact of Israeli settlement policies,
decisionsand activitieson effortsto achievepeace in the Middle East,
Expressing grave concern about the continuation by Israel of
settlement activities in violation of international humanitarian law,
relevant United Nations resolutions and the agreements reached
between the parties, including the construction and expansion of the
settlements in Jabal Abu-Ghneim and Ras Al-Amud in and around
OccupiedEast Jerusalem,
Expressing mave concern also about the construction by Israel of a
wall inside the Occupied PalestinianTerritory,including in and around
East Jerusalem, and expressing- its concern in particular about the route
of the wall in departure from the Armistice Line of 1949,which could
preiudge future negotiations and make the two-State solution
physically impossible to implement and would cause the Palestinian
people further humanitarianhardship,
Reiterating its opposition to settlement activities in the Occupied
Palestinian Territory, including East Jerusalem, and to any activities
involving the confiscation of land, the disruption of the livelihood of
protected persons andthe de facto annexationof land [. ..].
1. Reaffirms that Israeli settlements in the Palestinian territory,
including East Jerusalem,and in the occupied Syrian Golan are illegal
and an obstacle to peace and economicand social development;
2. Calls upon Israel to accept the de jure applicability of the Geneva
Convention relative to the Protection of Civilian Persons in Time of War, of 12 August 1949, 1 to the Occupied Palestinian Territory,
including East Jerusalem, and to the occupied Syrian Golan and to
abide scrupulously by the provisions of the Convention, in particular
article49;
3. Reiterates its demand for the complete cessation of al1 Israeli
settlement activities in the Occupied Palestinian Territory, including
East Jerusalem,and in the occupied SyrianGolan;
4. Demands that Israel stop and reverse the constructionof the wall in
the Occupied Palestinian Territory, including in and around East
Jerusalem, which is in departure from the Armistice Line of 1949 and
is in contradictionto relevant provisions of internationallaw; [. ..]
5. Urges al1 States parties to the Geneva Convention relative to the
Protectionof CivilianPersons in Time of War to ensurerespect for and
cornpliancewith its provisions in al1the Arab territories occupied by
Israel since 1967,includingJerusalem ".
This Resolutionwas adoptedby an ovenvhelming majority of 156votes in favour to 6
votes against (Israel, Nauru, Palau, Marshall Islands, Micronesia, and the United
Statesof America),with 13abstentions.
(iii) The Declaration of the High Contracting Parties to the
Fourth Geneva Convention
562. In the Declaration of High Contracting Parties to the Fourth Geneva
Convention,issued on 5 December2001,the Parties:
"reaffirm the illegality of the settlements in the said territories [SC.,
Occupied Palestinian Territory, including East Jerusalem] and of the
97421
extensionthereof.
563. This position is based on Article 49 of the Fourth Geneva Convention which
statescategorically: "[...] The occupyingPower shallnot deportor transfer parts of its
421
Para 12,Secretary-General'sDossier no. 67.
251own civilian population into the territory it occupies." The Rome Statute of the
International Criminal Court, in force since 1 July 2002, includes among the war
crimes within the jurisdiction of the International Criminal Court the " transfer,
directly or indirectly,by the Occupying Power of parts of its own civilian population
into the territoryit occupies" (Article 8 (2) (b) (vii)).
By the creation of Palestinian enclaves, discrimination against and
(c)
humiliation of the Palestinian population, and the creation of
unbearable economic conditions, the Wall is having the clear and
foreseeable effect of the forced displacement of the Palestinian
population into increasing-ly limited areas reparded as safe and livable
for Palestinians.The Wall is part of a policv of reducing and parcelling
out the territorial sphere over which the Palestinian people are entitled
to exercise their right to self-determination, establishing non-
contirnous Palestinian areas similar to Bantustans.
564. In the previous Chapters,in particular Chapters4 and 6, it has been described
how the constructionof the Wall is having several grievous effects:
- The Wall creates walled enclaves which artificially divide the Palestinian
population from their own environment, encircles them with hostile Israeli
settlements and prohibited roads reserved for Israeli settlers, and establishes
non-contiguous areas similar to the Bantu homelands of the former apartheid
regime of South Afiica. Although the term Bantustans may appear improper,
as one of its features was a fictitious grant of 'sovereignty' to each homeland,
the rationale is the same. Progressively a process is under way limiting any
'Palestinian State'to Palestinian cities and villages comprised of a number of
separate enclaves without sovereignty and with no resources for self-
sustenance and no possibility of free circulation for the population, and
surroundedby Israeli sovereigntyin the interstices between the enclaves. -
it discriminates against the Palestinian population and in the interest of the
illegalIsraeli settlers,bynter alia:
-the denial of the right to liberty, infringementof their fieedom or dignity;
- arbitraryarrest and illegal imprisonment;
-the imposition of living conditions calculated to cause the displacement of
the Palestinianpopulation;
- the imposition of measures preventing the Palestinian population from
participation in the political social, economic and cultural life, impeding
their right to work and access to education and health facilities, limiting the
right to move freely within or outside their country and their the right to
freedomof residence;
-the expropriation of their land and property, destruction of their houses,
orchards,and otherproperty.
565. Article 1 of the International Convention on the Elimination of Al1Forms of
Racial Discrimination of 7 March 1966, to which Israel is a Party, defines "racial
discrimination" as:
"any distinction, exclusion, restriction or preference based on race,
colour, descent, or national or ethnic origin which has the purpose or
effect of nullif$ng or impairingthe recognition,enjoymentor exercise,
on an equal footing, of human rights and fundamental freedoms in the
political, economic,social,cultural or any other field of public life."
566. In the case concerning the Legal Consequencesfor States of the Continued
Presence of South Afiica in Namibia (South West Africa) notwithstanding Security
Council Resolution 276 (1970),the Court definedapartheid in the followingway:
"130. The application of this policy [apartheid] has required, as has
been conceded by South Africa, restrictive measures of control
officially adopted and enforced in the Territory by the coercive power of the former Mandatory. These measures establish limitations,
exclusionsor restrictions for the members of the indigenouspopulation
groups in respect of their participation in certain type of activities,
fields of studyor of training, labour, employmentand also submit them
to restrictions or exclusions of residence and movement in large parts
of the Territory.
131. Under the Charter of United Nations, the former Mandatory had
pledged itself to observe and respect, in a territory having an
international status, human rights and fùndamental freedoms for al1
without distinction as to race. To establish instead, and to enforce,
distinctions, exclusions, restrictions and limitations exclusively based
on grounds of race, colour, descent or national or ethnic origin which
constitute a denial of fùndamental hurnan rights is a flagrant violation
of the purposesand principles of the
567. The similarity with the situations in the Occupied Palestinian Territory is
blatant. The Ziegler Report to the UN Commission on Hurnan Rights characterizes
Israel'spolicy as follows:
"3. The strategyof "Bantustanization"
18. For many Israeli and Palestinian cornmentators,the policy of land
confiscationis inspiredby an underlying strategyof graduallyisolating
Palestiniancommunitiesinto separateterritorial areas or "Bantustans".
Michael Warschawski has pointed to a conscious policy of
"Bantustanization" of the OPT. A senior Israeli commentator, Akiva
Eldar, has written about the explicit use of the Bantustan concept by
Israeli Prime Minister Sharon, who once "explained at length that the
Bantustan mode1was the most appropriate solution to the conflict".
The term "Bantustan" historicallyrefers to the separateterritorial areas
designated as homelands under the South African apartheid State.
Creating such "Bantustans" would deprive a future Palestinian State of
any coherent land base and international borders, and prevent the
building of a Palestiniannation with the capacity to realize the right to
food for its people.
19. The building of the security fencelapartheid wall is seen as a
concrete manifestation of this "Bantustanization", as is the extension
and building of new settlementsand settlerroads, which are cuttingup
423
Legal Consequencesfor States of the ContinuedPresence of South Africain Namibia (South
WestAfrica) notwithstandingSecurity CouncilResolution 276 (1970).Advisory Opinion,Z.C.J.Reports
1971,p. 16,atp. 57,paras.130-131. the West Bank and the Gaza Strip into barely contiguous territorial
units. Lookingat detailedmaps of the actual and future direction of the
security fencelapartheid wall and settlements, which the Israeli and
Palestinian authorities, as well as NGOs, provided to the Special
Rapporteur, it seems that this strategy is in the process of being
realized. According to Jeff Halper, Coordinator of the Israeli
Cornmittee against House Demolitions, the road map offers hope,
explicitly referring to the "end of the Occupation", yet it comes at a
time "when Israel is putting the finishing touches on its 35-year
campaignto render the Occupation irre~ersible."~~~
568. As was explainedin Chapter 6, the Wall in various ways causesdisplacement
of the Palestinian population, especially from the Closed Zone, and encircles the
Palestinian population in a series of enclaves. The effect is the disruption of the
dernographic unity and the territorial integrity of the Occupied Palestinian Territor-,
including East Jerusalem, the partitioning of the territory, and the perpetuation and
increase of the colonization of the territory by Israel. As was noted in Chapter 9, these
effects constitutegravebreachesof international law.
(i) Enclaves
569. Many delegationsto the United Nations have denouncedthe wrongfulnessof
the Israeli poli~y425 of creatingenclaves. For example:
- France:
424
Ziegler Report, para. 18-19.Footnotes omitted, Secretary-General's Dossier no. 56.
425 See also the declarationsmade by the following delegations:
- Pakistan :" A viable Palestinian State, as envisaged in the Quartet's road map, cannot be established
in the bantustans that will be created by the separation wall. The peace which Israel seeks will not
result from the continuing illegal occupation and suppression of a Palestinian population in these lands
which is hostile and aggrieved " (SlPV.4841, p. 22).
- Syrian Arab Republic : "First, the route traced by the wall is far removed from the borders of the
territories occupied since 1967, penetrating deep into Palestinian territories. This reveals the Israeli
Govemment's real intention: to create facts on the ground allowing them to set borders as they wish,
thus placing the Palestinian people in largebantustans and isolating them " (SPV.4841, p. 12).
- Guinea :" In addition, [the Wall] is the expression of a policy known as "bantustanization", whose
objective is to create enclaves that are not viable, denying any freedom of movement to the Palestinian
people and reserving the most fertile and most productive lands for the occupier(SPV.4841, p. 17). "The route [of the Wall] also seriously damages the viability of a
future Palestinian State, which would be likely to find itself reduced to
a collection of isolated enclaves."426
- Afghanistan, as Vice-Chairman of the Committee on the Exercise of the
InalienableRights of the Palestinian People:
"Last August, the Israeli authorities published expropriation warrants
to erect the wall referred to as the 'Jerusalem envelope'. Some 50,000
Palestinians could thus be relegated to enclaves situated on the Israeli
side. True, the wall separates Israelis fiom Palestinians,but - and this
is the real tragedy - it also separates Palestinians from
~alestinians."~~'
(ii)Segregation amountingto bantustanization
570. Some delegationsto the UN have expresslydescribed Israel'spolicy in terms
of the creationof Bantustans. For example:
- Organizationof the Islamic Conference:
" The wall furthers the 'bantustanization' of the West Bank into
hundreds of small, dependent entities that camot sustain themselves
and that are more akin to small, disconnected open-air prisons
surroundedby Israeli military checkpoints and ~ettlernents."~~~
- Cuba:
"Building new physical divisions in the occupied Palestinian territory
makes the opportunities for a lasting andjust settlementto the conflict
to become even more distant. 'Bantustanization' of the occupied
Palestinian territories creates new changes in the field, which further
complicate any future negotiations on permanent status and make it
impossible to establish a Palestinian State in which al1its territory is
~ontiguous.''~~~
426
427 SPV.4181, p. 18.
General Assembly, Emergency Special Session, 21st meeting, 20 October 2003, AIES-
428PV.21, p. 10.
429 SPV.4841, p. 41.
SPV.4841, p. 30. (iii)Discrimination
571. Again, numerous delegationshave criticised the discriminatory aspect of the
Israeli policy in relation to the construction of the Wall in the Occupied Palestinian
Temtory, includingEast Jerusalem. For example:
- United Kingdom:
"We are particularly alarmed by Israel's issuing of a military order
declaringthe land between the fence and the Green Line a closed zone,
where Palestinian residents must apply for permits to remain in their
own villages."431
- SaudiArabia:
"Itis thus clear that the purpose of this racist wall is not to ensure
security, as insolently claimed by Israel, but to confiscate more land,
and to humiliate andoppress the Palestinianpeople creating conditions
making it difficult or impossible for them to live within their own
country and on their own land."432
(iv D)isplacementofpopulation
572. Several delegations have emphasized that Israel's construction of the Wall
implies illegal displacement of population.For example:
- Malaysia, on behalf of the Non-Aligned Movement :
" The wall gravely violates the Fourth Geneva Convention in that it
involves the illegal de facto annexationof massive areas of Palestinian
land and resources, the transfer of a large number of Palestinian civilians and further denial of human rights among the Palestinians,
resulting in increased dire humanitarian consequences among an
already deprivedpeople."433
(d) The Wall violates the rinht of the Palestinian people to permanent
sovereignty over their natural resources in the Occupied Palestinian
Territow, includina East Jerusalem, and destroys the economic and
socialbasis of the life of the Palestinian people
573. In the previous Chapters, in particular Chapters 4 and 6, it has been
explainedthat the constructionof the Wall has deleteriouseffects on the environment,
deprives the Palestinian population of their land and their work, and closes off their
access to and impedes the management of their water resources. It destroys the roots
of the local Palestinian economy. As described inter alia in the Secretary-General's
October 2003 report submitted to the Court, the socio-economicimpact of the Wall is
intense.
574. Apart from the wrongfulness of this conductwith regard to the provisions of
humanitarian law and fundamental human rights, as explained in Chapter 9, it is
appropriateto underline the fact that these Israeli policies also hamper the permanent
sovereigntyof the Palestinianpeople overtheir naturalresources.
575. Since 1973 the General Assembly has drawn attention to this general
problem in the Occupied Palestinian Territory. Thus, Resolution 3175 (XXVII)
433 General Assembly, Emergency Special Session, 21st meeting, 20 October 2003, AIES-
10PV.21, p. 11. See also the declaration made before the General Assembly on the 8 December,AIES-
1OPV.23,p. 11.
435 Declaration of the European Union,Fourth Meeting of the Association Council-Israel,
Brussels, 17- 18November 2003, 14796103(Presse328),http://ue.eu.int/pressData/en/er/77932.pdf."Permanent sovereigntyover natural resources in the occupied Arab territories" of 17
December 1973,stated interalia:
"The General Assembly,
Bearing in mind the relevant principles of international law and the
provisions of the international conventions and regulations, especially
the Fourth Geneva Convention concerning the obligations and
responsibilitiesof the occupyingPower,
Recalling its previous resolutions on permanent sovereignty over
natural resources, including resolution 1803 (XVII) of 18 December
1962, in which it declared the right of peoples and nations to
permanent sovereigntyover their naturalwealth and resources, [. .]
Recalling also its resolution 3005 (XXXVII) of 15 December 1972, in
which it affirmed the principle of the sovereignty of the population of
the occupied tenitories over their national wealth and resources and
called upon al1 States, international organizations and specialized
agencies not to recognize or CO-operatewith, or assist in any manner
in, any measures undertaken by the occupied Power to exploit the
resources of the occupied territories or to effect any changes in the
demographic composition or geographic character of institutional
structureof those territories,
1.Affirms the right of the Arab Statesand peoples whose territories are
under foreign occupation to permanent sovereignty over al1 their
naturalresources;
2. Reaffirms that al1 measures undertaken by Israel to exploit the
human and natural resourcesof the occupied Arab territories are illegal
and calls upon Israelto halt such measures forthwith;
3. Affirms the right of the Arab Statesand peoples whose territoriesare
under Israeli occupation to the restitution of and full compensation for
the exploitation and looting of, and damages to, the natural resources,
as well as the exploitation andmanipulationof the human resources, of
the occupiedterritories;
4. Declares that the above principles apply to al1States, territories and
peoples under foreignoccupation,colonial rule or apartheid. "
576. More recently, the General Assembly, in Resolution Ai571269 of 20
December 2002 concerning "Permanent sovereignty of the Palestinian people in theOccupiedPalestinianTerritory,includingJerusalem, and of the Arab population in the
occupiedSyrianGolan overtheir natural resources", reaffirmed:
" the inalienablerights of the Palestinian people and the population of
the occupied Syrian Golan over their natural resources, including land
and water;".
577. The recent Resolution Al581493of 18 December 2003, with the same title,
addressed both the general situation created by Israel in the Occupied Palestinian
Territory,includingEast Jerusalem,and the specialregime createdby the construction
of the Wall. Itprovides as follows:
"The GeneralAssembly,
[..] Reaffirmingthe principle of the permanent sovereigntyof peoples
under foreignoccupationover their naturalresources,
Guided by the principles of the Charter of the United Nations,
affirming the inadmissibility of the acquisition of territory by force,
and recalling relevant Security Council resolutions, including
resolutions 242 (1967) of 22 November 1967,465 (1980) of 1 March
1980and 497 (1981)of 17December 1981,
Reaffirmingthe applicability of the Geneva Convention relative to the
Protection of Civilian Persons in Time of War, of 12August 1949, 21
to the Occupied Palestinian Territory, including East Jerusalem, and
other Arab territoriesoccupiedby Israel since 1967,
Expressing its concern at the exploitation by Israel, the occupying
Power, of the natural resources of the Occupied Palestinian Territory,
including East Jerusalem, and other Arab territories occupied by Israel
since 1967,
Expressing its concern also at the extensive destruction by Israel, the
occupying Power, of agricultural land and orchards in the Occupied
Palestinian Territory during the recent period, includingthe uprooting
of a vast number of olivetrees,
Aware of the detrimental impact of the Israeli settlements on
Palestinian and other Arab natural resources, especially the
confiscationof land andthe forced diversionof water resources, and of
the dire economicand socialconsequencesin this regard, Aware also of the detrimental impact on Palestinian natural resources
of the wall being constructed by Israel inside the Occupied Palestinian
Territory, including in and around East Jerusalem, and of its grave
effecton the economicand social conditionsof the Palestinian people,
1. Reaffims the inalienable rights of the Palestinian people and the
population of the occupied Syrian Golan over their natural resources,
including land and water;
2. Calls upon Israel, the occupying Power, not to exploit, cause loss or
depletion of or endanger the natural resources in the Occupied
Palestinian Territory, including East Jerusalem, and in the occupied
SyrianGolan;
3. Recognizes the right of the Palestinianpeople to claim restitution as
a result of any exploitation, loss or depletion of, or danger to, their
natural resources, and expresses the hope that this issue will be dealt
with in the fiamework of the final status negotiations between the
Palestinianand Israeli sides. [..] "
578. Here again various delegations have emphasized the importance of the
encroachments on this inalienable sovereign right of the Palestinian people. For
example:
- Declaration of the European Union, Fourth Meeting of the Association Council
EU - Israel,Brussels, 17 - 18November 2003:
"[...] The EU is particularly concerned by the route marked out for the
so-called security fence in the Occupied West Bank and East
Jerusalem. The envisaged departure of the route from the 'green line'
could prejudge future negotiations and make the two-State solution
physically impossible to implement. It would cause further
humanitarian and economichardship to the Palestinians. Thousands of
Palestinianswest of the fence are being cut off from essential services
in the West Bank, Palestinianseast of the fence will lose access to land
and water reso~rces."~~~
- Leagueof Arab States: " The economic repercussions of the construction of the wall include
the alrnosttotal destructionof the Palestinian economy;the isolationof
the Palestinianpeople in encircled islands.. .,,436
- Afghanistan, as Vice-Chairman of the Committee on the Exercise of the
InalienableRightsof the PalestinianPeople:
"The part of the wall that has already been built led to the illegal
confiscationof some 1,100hectares of Palestinian land that had been a
significant source of income. Some Palestinian farmers are now facing
the possibility of yet another electronic steel fence, which would
prevent them fiom gaining access to the olive trees that their families
have been growing for generations.'437
- SouthAfrica:
"As Commissionerof the European Union Chris Patten recently noted,
satellite photographs of the West Bank show that 45 per cent of
Palestinianwater resources,40 per cent of Palestinian farmland and 30
per cent of the Palestinianpeople themselves will ultimately end up on
the Israeli sideof the separationwall." 438
-
Committeeon the Exercise of the InalienableRights of the Palestinian
"The route of the wall would limit Palestinian access to water wells,
some of the best in the West Bank. Because of its position atop the
western groundwater basin, the wall would have a severe impact on
water access, use and allocation. Phase 1 of the wall has already
affected at least 50 communal wells, meaning that they are either
isolated west of the wall or in the "buffer zone" east of the wall. It has
also led to the destructionof some 35kilometresof water pipes.'*41
436 SIPV.4841,p. 24.
437 General Assembly, Emergency Special Session, 21st meeting,20 October 2003, A/ES-
lOIPV.21,p. 10.
438 General Assembly, Emergency Special Session, 21st meeting, 20 October 2003,AIES-
lO/PV.21,pp. 12-13.
440 The Committee is composed of the following Member States: Afghanistan, Belarus, Cuba,
Cyprus, Guinea, Guyana, Hungary, India, Indonesia, the Lao People's Democratic Republic,
Madagascar, Malaysia, Mali, Malta, Namibia, Nigeria, Pakistan, Romania, Senegal, Sierra Leone,
441th Africa, Tunisia, Turkey andUkraine.
Report of the Committeeon the Exercise of the Inalienable Rights of the Palestinian People,
Official Records, Fi@-eighth Session, Supplement No. 35 (A/58/35), 9 October 2003, par 26,
http://domino.un.org/unispal.nsf/9a798adb22af 8525617b006dd7/6 8f18e6~6dce8ac85256de300
5376b8!OpenDocument.para.26.579. Numerous other States have made declarations expressing a similar position:
for example, ~ala~sia:~~ United Arab mirat tes: ~^a^istan:~~ Syrian Arab
~e~ublic,4~'and ~atar.~~~
(e) The Wall endangers the feasibility of a viable State of Palestine and
consequently undermines the future of nenotiations based on the 'two
State' principle
580. As a result of al1the consequences mentioned in the preceding paragraphs,
the Wall makes the existence of a viable Palestinian State impossible. It would be a
State composedof enclaves, surrounded by Israeli by-pass roads and settlements, and
cut in several pieces by walls - and it should not be forgotten that among the Israeli
plans is the prolongation of the Wall along the Jordan Valley (the Eastern Wall): -
Under these conditions, where would the boundaries of the Palestinian State lie,
completely encircled and sliced up as every part of it is, with the Israeli occupying
442 "Large portions of the wall are being constructed deep into occupied Palestinian territory,
separating Palestinians from their agricultural land and water resources.The wall is designed to engulf
settlements. Besides the massive confiscation of fertile Palestinian land, valuable subterranean water
reservoirs have also been annexed"(SPV.4841, p. 26).
443 " The separation wall, which is built deep inside Palestinian villages and cities - 6
kilometres deep insome areas - will result in the de facto annexation of thousands of acres of private
and public Palestinian lands, whichcontain water and other natural resource..]"(SlPV.484 1,p. 31).
444
"There is little doubt that the wall separates the Palestinians from their own cities and
resources. It isolates, fragments and in some cases impoverishes those affected by its construction "
(SPV.4841, p. 22).
445 "The most dangerous aspect of the construction of the wall is its creation of a de facto
situation on the ground and that it isolates the Palestinians on both sides of the wall, prevents them
from communicating with each other and from benefiting from their own natural resources and
produces new environmental situations that will lead to more poverty, displacement and deprivation
among the Palestinians " (General Assembly, Emergency Special Session, 21stmeeting, 20 October
4463, AIES-10PV.21, p. 9).
"The situation has continued to deteriorate, particularly since Israel's decision to build the
separation wall, which has been condemned by the international community - even including a
portion of Israeli socie-y given its negative effectson the economic and social lifeof the Palestinian
people, onthe movement of citizens and onfree trade. The wall has annexed the landsof 25 Palestinian
towns, completely destroying their economiesand cutting them off from one another " (SlPV.4841, p.
34).forces stationed at every checkpoint? If the Wall is completed, the concept of a
PalestinianStatebecomesmeaninglessin the absenceof an internationalborder.
581. Consequently, the Wall cannot but deprive of al1 meaning the expected
outcome of the negotiations between Palestine and Israel, which envisaged a 'two
State' solutionand not the acquisitionby Israel of territory by force.
582. The so-called "security line" promoted by Israel aims clearly at prejudging
the future negotiations. Nobody believes in its temporary character. The majority of
Statesview this Wall as a de facto annexationof large areas of the territory where the
principal Israeli settlements are situated, and as yet another impediment to a viable
Palestinian State.
583. Once again, the recent speech by Israeli Prime Minister Ariel Sharon at the
"Herzliya Conference" on 18 December 2003 leaves little doubt about Israel's real
aims:
"This securityline will not constitutethe permanent border of the State
of Israel, however, as long as implementation of the Roadmap is not
resumed, the IDF will be deployed along that line. Settlementswhich
will be relocated are those, which will not be included in the territory
of the State of Israel in the framework of any possible future
permanent agreement. At the same time, in the framework of the
DisengagementPlan, Israel will strengt-en its control over those same
areas in the Land of Israel which will constitute an inseparablepart of
the Stateof Israel in any futureagreement."447 (emphasisadded)
584. The Israeli policy of fait accompli has been clearly condemned by the
GeneralAssemblyin Resolution ES- 10113 of 21October2003 :
447
In P.M. Speeches, text available athttp://www.first.gov.il/first/english/Htmlhomepage.htm.
264 " Particularly concemed that the route marked out for the wall under
construction by Israel, the occupying Power, in the Occupied
Palestinian Territory, including in and around East Jerusalem, could
prejudge future negotiations and make the two-State solution
physically impossible to implement and would cause further
humanitarianhardship to the Palestinians. "
585. This Israeli policy cannot be viewed othenvise than as a violation of the
Security Council resolutions adopted in this regard, starting with Resolution 242
(1967) of 22 November 1967, and including Resolution 1397 (2002) of 12 March
2002 and Resolution 1515(2003) of 19November 2003.
586. Numerous delegations have emphasizedthe incompatibility of the Wall with
the 'twoState' solution.Forexample:
- EuropeanUnion (declaration of the Italian Presidency, speaking also on behalf of
the acceding countries, Cyprus, the Czech Republic, Estonia, Hungary, Latvia,
Lithuania, Malta, Poland, Slovakia and Slovenia, the associated countries,
Bulgaria, Romania and Turkey, and the European Free Trade Association
countries,Icelandand Liechtenstein,membersof the European EconomicArea) :
"[The Wall] undermines Palestinian trust in the road map and appears
to prejudge the finalborders of a future Palestinian State. The current
and planned pathof the securityfence is ~nacceptable."~~~
- Malaysia,on behalf of the Non-AlignedMovement:
" With regardto the separationwall, we believe that its construction is
severely jeopardizing the creation of a viable contiguous Palestinian
State and the realization of the two-State solution. The Israeli
Government says that the wall is necessary to protect Israel from
terrorists. But the plans for the wall, and thactual construction itself,
indicate that it is more than just a security wall. It appears to be a devious wayto create new facts on the ground and impose a unilateral
solution which would prejudge the outcome of future negotiations on
theboundariesof the two States,Israel and ~alestine.'*~~
- France:
"The planned route,if indeed followed,prejudges the borders of the futurePalestinian
State.The continuedbuilding of a wall of separation followinga route that departs
fromthe GreenLine would de facto indicatethat Israel no longerrecognizes
resolution242 (1967)as an essentialbasis for negotiationswith the Pale~tinians.'~~~
- UnitedKingdom :
"But more important is the impact of the wall. The separation wall
undermines the trust between the parties that is necessary for
negotiations.It has a negative impact on the daily lives of Palestinians
and it calls into questionthe two-State solution."51
- United States :
"It is extremely important, if [the fence] is going to be built, that it not
intrude on the lives of Palestinians and, most importantly, that it not
lookas if it is tryingto prejudgethe outcome of a peace agreement.'*52
- Jordan :
"We also condemn the separation wall, which consolidates Israeli
occupation of Palestinian territories, devours further Palestinian land,
aggravatesthe sufferingof the Palestinianpopulation and anticipatesas
a fait accompli, the future shape of the Palestinian State. While we
demand that Israel cease forthwith the construction of the wall, we
stressthe need to respectthe statusof the 4 June 1967line."453
- Japan:
"These separationfences, although it is claimed that theyare intended
to prevent the intrusionof terrorists, not only negativelyaffectthe lives
of Palestiniansbut also prejudge the final status of the negotiations, as
the fenceis to be extendedinsidethe Green Line.'y454- Senegal,as Chairman of.the Committee on the Exercise of the Inalienable Rights
of the Palestinian People:
"This Barrier is a means of unilaterally setting the borders of the future
Palestinian State - whatever our Israeli fi-iendsmay Say - and this
Barrier is likely, without any doubt, to compromise negotiations on
final statusonce the parties reach that
-
Committeeon the Exercise of the InalienableRights of the PalestinianPeople:
"The construction also endangers international efforts aimed at
resolving the conflict and realizing the vision of a region where two
States, Israel and Palestine, would live side by side in peace and
security, as outlined in the Road Map. With these concerns in mind, the
Committee calls upon the international community, most notably the
Security Council and the General Assembly, to attach the necessary
importance to this issue, with a view to stopping the de facto
annexation of Palestinian land and the construction of the wall by the
occupying ~ower."~~~
587. Other delegations have expressed the same opinion in their statements,
including South ~fiica:~' Syrian Arab ~e~ublic,4~~ ~uinea,~~'~witzerland,4~'and
~ndia.~~L 'ikewise, the Secretary-General of the United Nations stated that he "views
455
General Assembly, Tenth Emergency Special Session, 21st meeting, 8 December 2003,
AIES-lOE'V.23,p. 13.
156 Report of the Committee on the Exercise of the Inalienable Rights of the Palestinian People,
Official Records, Fifty-eighth Session, SupplementNo. 35 (A/58/35), 9 October 2003, para. 73.
457
" The building of a separation wall is a pretext to occupy more land and makes a negotiated
settlement even harder to achieve " (SE'V.4841, p.35).
458 " [The route traced by the Wall] would make it impossible to achieve the objective of the
peace process with the Palestinians which is: to establish a Palestinian State in the territories occupied
459ce 1967,with East Jerusalem as its capital" (SE'V.4841, p. 12).
" It runs counter to the vision of two States, Palestinian and Israeli, living side by side within
safe and intemationally recognized borders. It is one of the most eloquent manifestations of the denial
to the Palestinian people of the exercise of their nght to full sovereignty within the framework of an
independent, free and viable State " (SE'V.4841,p. 17).
460
" Switzerland is firmly opposed to the construction of the separation wall undertaken by
Israel. The wall, which is illegal under international law and contrary to the road map, is a clear
obstacle to the peace process and the realization of the vision of two States " (General Assembly,
Tenth Emergency Special Session, 21st meeting, 8 December 2003, AIES-10lPV.23, p. 22).
461
" More importantly, Israel's insistence on continuing with the constructionof a secunty wall
would be widely interpreted as an attempt to predetermine the outcome of any final status negotiations
between Israel and the Palestinian Authority on the basis of the principle of land for peace, as called forboth the security wall and settlements in the West Bank built on Palestinian land as
seriousobstaclesto the achievementof a two-State solution."462
588. In conclusion, the Wall is completely incompatible with the right of the
Palestinianpeopleto self-determination.
by the relevant Security Council resolutions " (General Assembly, Emergency Special Session, 21st
meeting, 20 October 2003, AIES-1OlPV.21,p. 19).
462 " Secretary-GeneralDisturbed by Israel's Decisionson SeparationWall, New Settlements ",
Press Release, SG/SM/8913,2 October 2003. Chapter 11. LEGAL CONSEQUENCESOF ISRAEL'SBREACHES
589. It follows from the previous chapters that Israel, through its construction and
operationof the Wall in the Occupied Palestinian Territory, includingEast Jerusalem,
has violated, and continues to violate, a number of distinct international obligations
applicableto it.Thus:
A. Israel has no rinht to construct and operate the Wall in the Occupied
Palestinian Territow, including in and around East Jerusalem.
B. The construction and operation of the Wall violates international
humanitarianlaw, in particular for the followingreasons:
1. The Wall is largelybuilt in the OccupiedPalestinianTerritory;
2. The Wall is part of a continuing attempt by Israel to change the legal
status of the Occupied Palestinian Territory, including East Jerusalem,
and to effect aefacto annexationof Palestinianterritory;
3. The construction of the Wall and the surroundingzone has entailed the
destruction of Palestinian property contrary to Article 53 of the Fourth
Geneva Convention;
4. The construction of the Wall and the surroundingzone has entailed the
requisitioning of Palestinian property contrary to Article 52 of the
Hague Regulations;
5. Contrary to Article 64 of the Hague Regulations, the construction and
operationof the Wall fails to respect the laws in force in the country; 6. The construction and operation of the Wall is incompatible with
Israel's dutiesunder Article 55 of the Fourth Geneva Convention in
respect of ensuring food and medical supplies to the population of the
Occupied PalestinianTerritory;
7. The construction and operation of the Wall is a form of collective
punishment contrary to Article 33 of the Fourth Geneva Convention,
and Article 75 of Additional ProtocolI which in this respect represents
customaryinternationallaw;
8. The construction and operation of the Wall is a disproportionate
responseto any threat that might be consideredto face Israel.
C. The construction and operation of the Wall violates international human
rights law, inparticular for the followingreasons:
1. The constructionand operationof the Wall violates the right to freedom of
movement, as established in particular in Article 12 of the International
Covenant on Civil and Political Rights and Article 13 of the Universal
Declarationof HumanRights;
2. The construction and operation of the Wall violates Israel's obligations
under Article 6 of the International Covenant on Economic, Social and
CulturalRightsinrelation to the right to earn a living;
3. The construction and operation of the Wall violates Israel's obligations
under Articles 11 and 12 of the International Covenant on Economic,
Social and Cultural Rights andArticle 25 of the Universal Declaration on
Human Rights, and under Articles 24 and 27 of the Convention on the Rights of the Child, in respect of the provision of adequatefood and living
conditionsand medical care and social services;
4. The construction and operation of the Wall violates Israel's obligation
under Article 13 of the International Covenant on Economic, Social and
Cultural Rights and Article 26 of the Universal Declaration on Human
Rights, and under Article 28 of the Convention on the Rights of the Child,
in respect of the right to education;
5. The construction and operation of the Wall violates the rights of
Palestinians in the Occupied Palestinian Territory to family and cultural
life, as establishedinter alia in Article 17of the International Covenant on
Civil and Political Rights and Article16 of the Convention on the Rights
of the Child;
6. The constructionof the Wall has entailed takings of property without legal
justification and without proper legal process, contrary to customary
international law as reflected in, inter alia, Protocol 1 to the European
Conventionon HumanRights;
7. The seriousness of the violations listed in the preceding paragraphs is
aggravated by the fact that the operation of the Wall explicitly
discriminates against Palestinians and is applied to Palestinians in a
mannerthat degradesand humiliatesthem.
D. The construction and operation of the Wall violates the right of the
Palestinianpeople to self-determination,in particular in the followingrespects:
1. To the extentthat the Wall departs from the Green Line and is built in the
Occupied Palestinian Territory, including East Jerusalem, it severs the territoral sphere over which the Palestinian people are entitled to exercise
their right to self-determination. To the same extent the Wall is also a
violation of the legal principle prohibiting acquisition or annexation of
territory by the use of force;
2. The route of the Wall is designed to change the demographic composition
of the Occupied Palestinian Territory, including East Jerusalem, by
reinforcing the Israeli Settlements and by facilitating their extension, in
disregard of the fact that these settlements are illegal according to
internationallaw;
3. By the creation of Palestinian enclaves, discrimination against and
humiliation of the Palestinian population, and the creation of unbearable
economicconditions,the Wall is having the clear and foreseeableeffect of
the forced displacement of the Palestinian population into increasingly
limited areas regarded as safeand livable for Palestinians;
4. The Wall is part of a policy of reducing and parcelling out the territorial
sphere over which the Palestinian people are entitledto exercisetheir right
to self-determination,establishingnon-contiguousPalestinian areas similar
to Bantustans;
5. The construction and operation of the Wall violates the right of the
Palestinian people to permanent sovereigntyover their natural resourcesin
the Occupied Palestinian Territory, includingEast Jerusalem, and destroys
the economic and socialbasis of the life of the Palestinianpeople;
6. The construction and operation of the Wall endangers the feasibility of a
viable State of Palestine and consequently undermines future negotiations
based on the 'two State'principle.590. The legal consequences of such breaches must be considered separately (1)
for Israel and (2) for Statesother than Israel.
(1) Legal Consequencesfor Israel
591. The breaches of international law previously enumerated constitute
intemationally wrongful acts within the meaning of the Articles on State
Responsibility, as adopted by the ILC in 2001 and of which the United Nations
General Assembly tooknote in resolution A/RES/56/83 of 12December2001.
592. The wrongful acts arising fiom or relating to Israel's construction and
operation of the Wall are attributable to Israel and entai1 its responsibility under
intemational law. As Article 1of the ILC Articles confirms:
"Every internationallywrongful act of a State entails the international
responsibility of that State."
593. The ILC Articles comprise, in Part Two, various provisions relating to the
legal consequences of an intemationally wrongful act. These consequences, whose
customarycharacter cannot be disputed, includethe following:
- Continuedduty ofperformance (Article 29);
- Cessationand non-repetition(Article 30) ;and
- Reparation (Article 31), taking the form of restitution (Article 35) and
compensation(Article 36).These various consequencesand their applicationto Israel in the present case will be
addressedbelow.
Continueddutyto performthe obligationbreached
(a)
594. Article 29 of the ILC Articlesprovides:
"The legal consequences of an internationallywrongful act under this
Part do not affect the continued duty of the responsible State to
performthe obligationbreached."
595. In accordance with this provision, Israel's international obligations remain
unaffected by the breaches committed by it in connection with its construction and
operation of the Wall. The facts accomplished onthe ground effect no change in the
application of the legalnorms. The applicable norms retain their legal value in their
entirety accordingto the maxim ex injuriajus nonovituvand Israel must respectthem
in the OccupiedPalestinianTerritory,including EastJerusalem
596. Israel has received repeated warnings concerning its apparent policy of
creating faits accomplis with the intent of reinforcing illegal settlements or
implementing creeping annexation through the construction of the Wall in the
Occupied Palestinian Territory, including East Jerusalem. For e~am~le:~~as was
mentionedabove,the Quartetresponsible forthe Road Map has stated:
"The Quartet members reaffirm that, in accordancewith the road map,
settlement activity must stop, and note with great concern the actual
and proposed route of Israel's West Bank fence, particularly as it
results in the confiscationof Palestinian land,cuts off the movementof
463 See also the numerous declarations quotedin chapter 10,passim. people and goods and undermines Palestinians' trust in the road map
process, as it appears to prejudge final borders of a future Palestinian
State."464
597. Moreover, Paragraph 13 of the Declaration of the Conference of High
Contracting Parties to the Fourth Geneva Convention, adopted in Geneva on 5
December2001, declared:
"The participating High Contracting Parties recall that according to
article 148no High ContractingParty shall be allowed to absolve itself
of any liability incurredby itself in respect of grave brea~hes."~~~
598. In conclusion,Israel has the continuedduty to perform and observe al1the applicable
internationalobligationsbreached by it in connectionwith the construction and operation of
the Wall in the Occupied Palestinian Territory, including East Jerusalem. In particular,
Israel is obliged to recognize and accept al1the obligations mentioned in Chapters 7, 8, 9
and 10,above.
(b) Cessationof the wrongful act
(4 Theprinciple
599. Under the obligation of cessation, a State that is responsible for an
internationallywrongful act has the obligationto put an end to it. Article 30 of the ILC
Articles describesthis legalconsequencein the followingterms:
464
Quartet statement,New York, 26 September2003, Annex to the Letter dated 6 October 2003
from the UN Secretary-General addressed to the President of the Security Council, UN Doc.
S/2003/951.
465 The Declaration appears as Dossier no. 67 attached to the Secretary-General's submissionin
this case.. The grave breaches are listed in Article 147 of the Convention and Article 85 of Additional
Protocol 1. "Cessationand non-repetition
The State responsible for the internationally wrongful act is under an
obligation:
(a) To ceasethat act, if it is continuing;..] "
600. This is a classic nom. The Court referred to it in its Judgment of
27 June 1986:
"The Court (...) decides that the United States of America is under a
duty immediately to cease and to refrain from al1 such acts as may
constitutebreaches of the foregoinglegal obligations.''66
601. Orders whereby the Court indicates provisional measures fi-equentlyprovide
for the imrnediate cessation of certain conduct pending the Court's decision on the
merits. Thus,the Court'sOrderof 3 March 1999in the LaGrand Caseprovided that:
"[tlhe United Statesof America shouldtake al1measures at its disposa1
to ensure that Walter LaGrand is not executed pending the final
decision in these proceedings, and should inform the Court of al1the
measureswhich it has taken in implementationof this ~rder.'*~~
602. An obligation of this kind is also frequentlyreiterated by the United Nations
GeneralAssembly (seebelow foran examplerelatingto the Wall) and by the Security
Council in cases of grave breaches of international law. As the ILC Commentary
emphasises:
"The function of cessation is to put an end to a violation of
international law and to safeguard the continuing validity and
effectiveness of the underlying primary rule. The responsible State's
obligation of cessation thus protects both the interests of the injured
466
Military and Paramilitary Activitiesin and against Nicaragua (Nicaragua v. United States
ofAmerica), I.C.J. Reports 1986,p. 149.
467 LaGrand Case (Germanyv. United Statesof America), Order,Provisional Measures, I.C.J.
Reports 1999,para. 29(a). State or States and the interests of the international community as a
whole in the preservation of, and reliance on, the rule of la^."^^'
(ii)Application to thepresent case
603. Numerous States and international organisations have called on Israel to
cease its construction of the Wall. The following statements constitute representative
examples:
European Union:
- PresidencyConclusions,ThessalonikiEuropean Council, 19and 20 June 2003
"86. The European Council calls on Israel to reverse the settlement
policy and activity and end land confiscations and the construction of
the so-called security fence, al1of which threaten to render the two-
Statesolutionphysically impossibleto implement."469
It is recalled that the European Union, with support from the candidates for accession
to the Union in May 2004, introduced draft Resolution AES- 1OIL.15 in the General
Assembly. This draft was ovenvhelmingly adopted by the Assembly on 21 October
2003 as Resolution AIES-10113.
468 Commentaries to the draft articles on Responsibility of States for intemationallywrongful
acts adopted by the Intemational Law Commissionat its fifty-third session (2001), Report of the
International Law Commission on the work of itsFifS-third session, Officia1Records of the General
Assembly, Fifty-sixthsession, SupplementNo. 10(A/56110),p. 218.
469
Presidency Conclusions, Thessaloniki European Council, 19 and 20 June 2003,
http://www.europa.eu.intieuropean~council/concluS seeoaso/thedeexcnratitm.f the
European Union,Fourth Meeting of the Association CouncilEU - Israel, Brussels, -718November
2003, 14796103(Presse328),http://ue.eu.intipressData/en/er/77932.pdf. Organisationof the Islamic Conference:
According to Resolution no 1110-Pal(1s) on Palestine Affairs, adopted at the Tenth
Session of the Islamic Summit Conference (Session of Knowledge and Morality for
the Progress of Ummah) Putrajaya - Malaysia, 20 - 21 Sha'aban 1424 H., 16-17
October2003:
La Conférence :
" 8.Demande au comité des quatre (Etats Unis, Fédératiod ne Russie,
Union européenne et Nations Unies) d'Œuvrer de nouveau à
l'instauration d'une paix juste et globale au Moyen- orient
conformémentaux résolutions pertinentesde la légalité internationale,
aux termes de référencede Madrid et à l'initiative arabe de paix,à
l'application de la feuille de route telle quelle, au déploiement de
forces internationales pour garantir le calme et la stabilité dans la
régionet de contraindreIsraël à :
[..l
- stopper la construction du 'mur raciste' qui dévore les
terres palestiniennes, créedes faits accomplis iniques au détriment des
frontières internationales de lYEtat palestinien et contribue au
Y470.
pourrissementde la situationdans la région
Thedrajî Security Councilresolution tabledon 14 October2003
604. On 14 October 2003, Guinea, Malaysia, Pakistan and the Syrian Arab
Republic introduced a draft resolution in the UN Security Council containing
unequivocal language regarding the conclusions to be drawn from the breaches
stemming fromIsrael's construction of the Wall.The text proposed that the Security
Council:
"Decide[. ..] that the constructionby Israel, the occupyingpower, of a
wall in the Occupied Territories departing fiom the armistice line of
470 Textavailable http://www.oic-oci.org/frencWis/10/10%2Ois-main-f.htm.
278 1949 is illegal under relevant provisions of intemational law and &
be ceased and rever~ed."~~~
605. As is well known, this text was not adopted, following the veto of one
permanent member of the ~ouncil.~'~Nevertheless, the draft received 10 votes in
favour from the following States: Angola, Chile, China, France, Guinea, Mexico,
Pakistan, Russian Federation, Spain,and the Syrian Arab Republic.
606. Furthermore, during the debate on the draft resolution a large number of
States insisted in their interventions on the pressing need for the immediate cessation
of the construction of the Wall. For example:
- Russian Federation:
"We are convinced that an important component for the exit strategy
from the confrontation is the cessation of unilateral steps by the
leadership of Israel. The unlawful settlement activity on the Palestinian
territorie; and the construction of the so-called sepiration wall, which
has resulted in the seinire of Palestinian lands, must be immediately
halted.7'473
- Jordan:
"We cal1on Israel to stop the construction of the wall immediatelyand
emphasizethe need to respectthe lines of 4 June 1967."~~~
- Japan:
"With respect to the latest Israeli decision to extend the fence, which is
truly regrettable, Japan stronglyrequested the Israeli Govemment, on 1
October - the day of Cabinet approval - to refrain from
implementing that decision. Today, 1 would like to take this
opportunity to request the Israeli Govemment once again not to
implementthat deci~ion."~~~
471 UN Doc. SI20031980(emphasis added).
472 UN Doc. SPV.4842, 14 October 2003. There were four abstentions: Bulgaria, Cameroon,
Germany and UnitedKingdom.
473 UN Doc. SPV.4841, p. 15.
474 UN Doc. SlPV.4841,p. 31.
475 UN Doc. SlPV.4841,p. 32.- European Union (declaration of the Italian presidency, speaking also on behalf of
the acceding countries, Cyprus, the Czech Republic, Estonia, Hungary, Latvia,
Lithuania, Malta, Poland, Slovakia and Slovenia, the associated countries
Bulgaria, Romania and Turkey, and the European Free Trade Association
countriesIcelandand Liechtenstein,members of the European EconomicArea):
"The European Union is strongly opposed to the construction by Israel
of a separation wall in the West Bank, and urges the Government of
Israel to stop its construction in the Palestinian territories, including in
and around Jerusalem, and other illegal activities, such as the
confiscationof land and the demolition of houses, that it enta il^."^^^
607. ~exico;~~ ~akistan;~~ ~ernen;~~ ~~~~t,4~a ~nd ~r~entina~~l made
statementsalongthe same lines.
GeneralAssemblyResolutionA/ES-10/13adopted on 21 October 2003
608. General Assembly Resolution MES-10113is particularly significant. Its text,
which was introduced by the Member States of the European Union together with the
476 UN Doc. SPV.4841, p. 42.
477 "We therefore believe that the State of Israel must halt construction of thiswall and avoid
any action in Palestinian territory that cannot beied on the basis oftheir legitimate right to secure
478ders or to prevent any terrorist acts on their own territory"(UN Doc. SlPV.4841,p. 16).
"[The separation wall] must be declared illegal by the SecurityCouncil, and the Government
of Israel mustbe asked to cease, and reverse, its construction"(UNDoc. SPV.4841, p. 22).
479 "[ ...] the Security Council must adopt a resolution to be implemented to force Israel to
immediately halt the construction of the wall on occupied Palestinian territory andfar from the Green
Line, and to strictlyrespect its cornmitments, in keeping withinternationallaw andnorrns and with the
480rth Geneva Convention"(UN Doc. SPV.4841, p. 28).
"What is demanded of the Security Council todayis to express international consensuson
thefirm demand that Israel stop the construction of the wall of separationdeep inside Palestinian
territory, setide its settlement policy and assume its responsibilities as an occupying Power, in
accordancewith the 1949Fourth Geneva Convention"(UN Doc. SlPV.4841,p. 29).
481
"Israel's construction of awall on occupied territory is one more reason for concern. It is
also a violation of international law. We thereforecal1for an end to the ongoing construction of the
wall, especially alongareas that donot follow the GreenLine" (UN Doc. SlPV.4841,p. 37).accedingcountries (Cyprus,the Czech Republic, Estonia, Hungary, Latvia,Lithuania,
Malta, Poland, Slovakiaand Slovenia),statesthat the Assembly:
"1. Demands that Israel stop and reverse the construction of the wall in
the Occupied Palestinian Territory, including in and around East
Jerusalem, which is in departure of the Armistice Line of 1949 and is
in contradictionto relevantprovisions of intemational law."
This resolution was adopted by 144 votes in fa~our~'~to four against,483with 12
abstentions.484
609. In conclusion, Israel is under an obligation immediately to cease al1intemationally
wrongful acts arising from or in connectionwith the construction and operation of the Wall
in the Occupied Palestinian Territory, including East Jerusalem. Consequently, Israel has
inter alia a duty immediately to cease the construction, planning and operation of the Wall
within the Occupied Palestinian Territory, including East Jerusalem, and to conform to its
obligations under Security Council resolutions. Israel has the further duty to desist from
taking any further action, altering, or purporting to alter, the legal status, institutional
structure, geographicaland historical character and demographic compositionof the Closed
482
Albania, Algeria, Andorra, Angola, Antigua and Barbuda, Argentins, Armenia, Austria,
Azerbaijan, Bahamas, Bahrain, Bangladesh, Barbados, Belarus, Belgium, Belize, Benin, Bosniaand
Herzegovina, Botswana, Brazil, Brunei Darussalam, Bulgaria, Burkina Faso, Cambodia, Cameroon,
Canada, Cape Verde, Chile, China, Colombia, Comoros, Costa Rica, Côte d'Ivoire, Croatia, Cuba,
Cyprus, Czech Republic, Democratic People's Republicof Korea, Denmark, Djibouti, Dominica,
Egypt, Entrea, Estonia, Ethiopia,nland, France, Gabon, Gambia, Germany, Ghana, Greece, Grenada,
Guatemala, Guinea, Guinea-Bissau, Guyana, Hungary, Iceland,India, Indonesia, Iran, Ireland, Italy,
Jamaica, Japan, Jordan, Kazakhstan, Kenya,,Kyrgyzstan, Lao People's Democratic Republic, Latvia,
Lebanon, Lesotho, Libya, Liechtenstein, Lithuania, Luxembourg, Malaysia, Maldives, Mali,Malta,
Mauntania, Mauritius, Mexico, Monaco, Mongolia, Morocco, Mozambique, Myanmar, Namibia,
Nepal, Netherlands, New Zealand, Niger, Nigeria,Nonvay, Oman, Pakistan, Panama, Paraguay, Peru,
Philippines, Poland, Portugal, Qatar, Republic of Korea,omania, Russian Federation, Saint Lucia,
San Marino, Saudi Arabia, Senegal, Serbia and Montenegro, Sierra Leone, Singapore, Slovakia,
Slovenia, Somalia, South Afnca, Spain, Sri Lanka,Sudan, Suriname, Swaziland, Sweden, Switzerland,
Syna, Thailand, The former Yugoslav Republic of Macedonia, Togo,Trinidad and Tobago, Tunisia,
Turkey, Ukraine, United Arab Emirates, United Kingdom, United Republic of Tanzania, Venezuela,
Viet Nam, Yemen,Zambia, Zimbabwe.
483 Federated States of Micronesia, Israel, Marshall Islands,United States.Zone or any part thereof, within the Occupied Palestinian Territory, including East
Jerusalem,or which would prejudice the rights of the Palestinian inhabitants of the relevant
area or the right of the Palestinian people to self-determination.Accordingly, Israel is under
a duty to desist from transferring parts of its civilian population into the Occupied
PalestinianTerritory,and from causing the displacement of the Palestinianpopulation in the
relevant area.
(c) Reparation
610. Under the law of State re~~onsibility for internationally wrongful acts,
reparation constitutes, in case of injury, the classical legal consequence of
responsibility. As stated by the Permanent Court of International Justice, reparation
"must, so far as possible, wipe out al1 the consequences of the illegal act and re-
establish the situation which would, in al1probability, have existed if that act had not
been ~ommitted."~~~ According to the Permanent Court:
"It is a principle of international law that the breach of an engagement
involves an obligat-on to make reparation in an adequate form.
Reparation therefore is the indispensable complement of a failure
/ ,7486
611. Article 3l(1) of the ILC Articles statesthe principle as follows:
"The responsible State is under an obligation to make full reparation
for the injurycaused by the internationallywrongful act."
484
Australia, Burundi, Dominican Republic, Ecuador, Honduras, Malawi, Nauru, Nicaragua,
Papua New Guinea,Rwanda, Tuvalu, Uruguay.
485 Factoryat Chorzbw,Merits, 1928,P.C.I.J., SeriesA, No. 17,p. 47.
486 Factory at Chorzbw, Jurisdiction, 1927, P.C.I.J.,Series A, No. 9, p. 21. The present Court
most recentlyeferred to this statement in the LaGrand Case. See LaGrand Case (Germany v.United
States ofAmerica), Merits,dgment of 27 June 2001, para. 45.612. This principle has been afhed in the Court's jurisprudence.487Thus, Israel
is under an obligation to make reparation for al1injury caused to Palestine and the
Palestinianpeople by the constructionof the Wall and by the breaches of international
law outlined in the previous chaptersof this Written Statement.
(i) Reparation in theform of restitution
1. The principle
613. As described above, reparation may take various forms, including restitution
(so-called restitutio in integrum) and compensation. According to Article 34 of the
ILC Articles:
"Forms of reparation
Full reparation for the injury caused by the internationallywrongful act
shall take the form of restitution, compensation and satisfaction, either
singly or in combination [. ..]."
614. Restitution is a form of reparation for injury which is aimed at the re-
establishment of the situation which existed before the breach, by reverting to the
status quo ante. Article 35 of the ILC Articles provides:
"Restitution
A State responsible for an internationally wrongful act is under an
obligation to make restitution, that is, to re-establish the situation
which existedbefore the wrongful act was committed,provided and to
the extent that restitution:
(a) is not materiallyimpossible;
(b) does not involve a burden out of al1 proportion to the benefit
deriving from restitutioninstead of compensation."
487 See, e.g., Military and Paramilitary Activities in and against Nicaragua (Nicaragua v.
United StatesofAmerica), Merits,Judgment, I.C.J. Reports 1986,p. 149sub (13) and (14).
283615. As the PermanentCourt of International Justice stated:
"The essentialprinciple contained in the actualnotion of an illegal act -
a principle which seems to be established by internationalpractice and
in particular by the decisions of arbitral tribunals - is that reparation
must, so far as possible, wipe outal1the consequencesof the illegal act
and re-establish the situation which would, in al1 probability, have
existed if that act had not been committed. Restitution in kind, or, if
this is not possible,payment of a sum correspondingto the value which
a restitution in kind would bear; the award, if need beyof damages for
loss sustained which would not be covered by restitution in kind or
payment in place of it - such are the principles which should serve to
determine the amount of compensation due for an act contrary to
international la^."^^^
616. This principle was recently applied by the present Court in the case
concerningtheArrest Warrant of 11April2000 (DemocraticRepublicof the Congov.
~el~iuin).~~~ Referring to the above-mentioned dictum, the Court stated: "In the
present case,'the situationwhich would, in al1probability, have existed if [the illegal
act] had not been committed' cannotbe re-established merely by a finding by the
Court that the arrest warrant was unlawful under international la~.'*~O Consequently,
it decided that "Belgiurn must, by means of its own choosing, cancel the warrant in
questionand so informthe authoritiesto whom it was circulated."
2. Applicationin the present case
617. Restitutionmay take various forms: material restoration of territory, persons
or property, or annulment of legal acts. In the present instance, the established
488 Factoryat Chorzbw,Merits, 1928,P.C.I.J., SeriesA, No. 17,p. 47.
489 Arrest Warrantof Il April2000 (DemocraticRepublic of the Congo v. Belgium),Judgment
of 14 February 2002. See also Gabcikovo-NagymarosProject (Hungary v. Slovakia), Judgement,
I.C.J.Reports 199p.7, at 81,paras. 149-150.breaches requirethe annulment of legislative acts, or decrees, or administrativeacts or
orders in connexion with the construction of the Wall, as well as the physical
dismantlementof the Wall and the restitution of confiscated land and property. Where
Israel's wrongful acts affect any portion of the Occupied Palestinian Territory to the
east of the Green line, one is faced with a situation similar to that confionting the
Permanent Court in the case concerning the Free Zones of Upper Savoy and the
District of Gex, in which it decided that France "must withdraw its customs line in
accordancewith the provisions of the said treaties and instruments [...I."~~'
618. Restitution assumes particular significance, as here, when the breaches have
a continuous character and where the norms infiinged constitute peremptory noms of
international law: the prohibition against the use of force, the prohibition against
annexation, the right to self-detemination, fundamental norms of international
humanitarian law and of human rights law.
619. Indeed, in some cases, restitution is impossible (e.g., villages may have been
erased, orchards destroyed, etc); and when reconstruction or replanting is no longer
feasible,full compensation must be made.
620. In the present instance, numerous Statesand international organisationshave
called on Israel not only to cease its practices and measures connected with the Wall,
but to dismantlethe Wall entirely.The following examplesmay be given:
490
Arrest Warrantof Il ApriI2000 (DemocraticRepublicof theCongov. Belgium),Judgment
491February 2002,para. 76.
P.C.I.J.,SeriesA/B,No. 46, p. 96, at p. 172. European Union:
- Declaration of the European Union, Fourth Meeting of the Association CouncilEU
- Israel,Brussels, 17 - 18November 2003 :
"In this context the EU is alarmed by the designation of land between
the fence and the "green line" as a closed military zone. This is a de
factochange in the legal status of Palestinians living in this area which
makes life for them even harder. Hence, the EU calls on Israel to stop
and reverse the construction of the so-called security fence inside the
occupied Palestinian territones, including in and around East
Jerusalem,which is in departure of the armistice line of 1949and is in
contradictionto the relevant provisionsof international la^.'*^^
Organisationof theIslamic Conference:
- According to Resolution no. 1110-Pal(1s)on Palestine Affairs, adopted at the Tenth
Session of the Islamic Summit Conference (Session of Knowledge and Morality for
the Progress of Ummah) Putrajaya - Malaysia, 20 - 21 Sha'aban 1424H., 16-17
October2003:
La Conférence:
" 17. Condamne la politique colonialiste et expansionniste d'Israël et
Réafirme la nécessité d'Œuvrerà la cessation de toutes les opérations
de colonisation, de toutes les pratiques et de tous les agissements
israélienscontraires à la légalité internationaleet aux accords conclus
entre les deux parties;Demande au Conseilde sécuritéde faire abroger
ces mesures, d'exigerle démantèlementdes implantationset le mur de
la honte en application de sa résolutionn0465 et de relancer le Comité
international de Contrôle et de Surveillance pour empêcherla
colonisationd'Al-Qodset des territoiresarabes occupés, conformément
à la résolution11'446du Conseilde sécurité [..]" 493.
621. Thiswas also impliedlythe position of al1the Statesmembers of the Security
Council that votedin favour of the draft sponsored byGuinea, Malaysia,Pakistan andthe Syrian Arab Republic and discussed in plenary session on 14 October 2003. The
draft proposedthat the SecurityCouncilresolvethat it:
"Decides that the construction by Israel, the occupying power, of a
wall in the Occupied Territories departing fiom the armistice line of
1949 is illegal under relevant provisions of international law and &
& ceased and rever~ed."~~~
622. The ten States voting in favour of the draft resolution were: Angola, Chile,
China, France, Guinea, Mexico, Pakistan, Russian Federation, Spain and the Syrian
Arab Republic. Furthemore, during the sessions devoted to the question of the Wall
in the Security Council and the General Assembly, numerous States expressed
themselvesalongthe same lines. For instance:
-
Malaysia,on behalf of theNon-Aligned Movement:
"The NAM reaffms its position on the Israeli expansionist wall, as
clearly expressed during the debate in the Security Council on 14
October. In brief, we reiterate that the Israeli expansionist wall
constructed in occupied Palestinian territory is illegal, must be
dismantled and its further construction immediately discontinued
,7495
[...].
-
IslamicRepublicof Iran, on behalf of the Organization of the Islamic Conference:
"The fact that Israel explicitly ignored the decision of this Assembly
and insisted, in its contempt for the will of the international
cornrnunity, on continuing the construction of the expansionist wall,
brought the Secretary-General to conclude, in his report contained in
document AES-101248, that ' Israel is not in cornpliance with the
Assembly'sdemand'."496
492
Declaration of the European Union,Fourth Meeting of the Association Counc-lIsrael,
493ussels,Text availabluthttp://www.oic-oci.org/french/is/10/10%20is-main-f.htm./er/77932.pdf.
494
UN Doc. SI20031980(emphasis added).
495 General Assembly, Tenth Emergency Special Session, 21st meeting, 20 October 2UN3,
Doc. AIES-1OPV.21,p. 11. See also the declaration madeby the Malaysian delegationon behalf of the
Non-Aligned Movement before the Security Council, UNDoc. SPV.4841, p. 26.623. Numerous other States adopted the same position, including alt ta?^'
Leban0n,4~~ 'ndonesia?~~ ~ahrain,~" United Arab mirat tes,^ a'^d chile.'02
624. Here again it is appropriate to recall that General Assembly Resolution
AIES-10113,whichreceived 144votes in favour, stated that the Assembly:
"1.Demandsthat Israel stop and reverse the constructionof the wall in
the Occupied Palestinian Territory, including in and around East
Jerusalem, which is in departure of the Armistice Line of 1949 and is
in contradictionto relevantprovisions of international law."
625. In conclusion, Israel is under obligation to provide reparation in the form of
restitution by reversingthe constructionof the Wall and the regime associatedwith it,
in the Occupied Palestinian Territory, including East Jerusalem. Israel is under
obligation inter alia to rescind al1legislative and administrative measures, policies,
actions and practicestaken by it in relation to the Wall, includingthe expropriationof
496
General Assembly, Tenth Emergency Special Session, 21st meeting, 8 December 2003, UN
497. AIES-10PV.23, p. 14.
"Israel needs to clearly recognize the illegality of its presence in the occupied temtories.
This implies the reversa1of the measures that are accompanying this occupation in particular the
building and maintenance of settlements and the construction of the partition wall on Palestinian
territory" (UN Doc. A/58/PV.11, p. 26).
498 "Therefore Lebanon appeals to the Security Council to adopt the draft resolution, submitted
by the Arab group, which considers the construction by Israel, the occupying Power, of this wall in the
occupied Palestinian temtories as a violation of the 1949armistice line. The draft resolution also States
that this construction is illegal on the basis of international law and requires the end of construction on
the wall, the demolition of those portions that have already been built and the restoration of the status
quo ante" (UN Doc. SPV.4841, p. 50).
499 "Israel must cease its il1(s.ractices, including construction of the wall, as they contradict
and jeopardize the roadmap. In addition, the completed portions of the wall must be demolished"
(General Assembly, Tenth Emergency Special Session, 21st meeting, 20 October 2003, UN Doc.
500S-10PV.21, p. 14).
"The Kingdom of Bahrain calls on the Security Council, the Quartet and those countries that
are sponsoring the peace process to exert pressure on the Israeli Government immediately to halt
construction of the separation wall, to tear it down and to cease building settlements" (UNoc.
SlPV.4841,p. 33).
501 "We also urge the Security Council to issue an effective resolution that categorically
condemns the separation wall and demands that Israel fully and unconditionally remove the wall, in
accordance with the United Nations Charter, international humanitarian law and the relevant United
Nations resolutions" (UNoc. SPV.4841, p. 32).land and properties within the Occupied Palestinian Territory, and must rescind al1
previous actions,including by the lifting of any restrictions imposed on the movement
of persons and goods and on the operations of humanitarian organizations in the
relevant area. Moreover, Israel has a duty to cause the immediate removal and
repatriation of its civilian population transferred to the section of the Wall within the
Occupied Palestinian Territory since the commencement of the construction of the
Wall, to dismantle any existing settlements in the relevant area, to ensure and
facilitate the safe and irnrnediatereturn of any and al1displaced Palestinian civilians
to the relevant area, and to release any person or persons detained as a result of
Israe17sconstructionand maintenanceof the regime of the Wall.
(ii)Reparation in theform of compensation
626. It is a well established principle of international law that an injured party is
entitled to compensation fiom the party which has committed an intemationally
wrongful actfor the damage caused by that act.
627. Compensation may take the form of the payment of a sum of money. This
legal consequenceis contemplatedby Article 36 of the ILC Articles:
"Compensation
1.The State responsible for an internationallywrongful act is under an
obligation to compensate for the damage caused thereby, insofar as
such damage is not made goodby restitution.
502
"The Chilean delegation considers that the Security Council must express its views on the
situation and make a strong appeal, through a resolution, for the cessation of the building of the
separationwall and the dismantling of what has been built" (UN Doc. S/PV.4841,p. 16). 2. The compensation shall cover any financially assessable damage
includingloss of profits insofar as it is established."
628. The Permanent Court of International Justice, in the ChorzbwFactory Case,
declared that it is "a principle of international law that the reparation of a wrong may
consist in an inde~nnity."~~~ In the case concerning the Gabcikovo-Nagyrnaros
Project, the present Court affirmedthisprinciple:
"It is a well-establishedrule of international law that an injured State is
entitledto obtain compensationfiom the Statewhich has committed an
internationallywrongfül act forthe damage caused by it."504
629. As has been seen shown in the preceding chapters, the damage caused to
Palestine and the Palestinian people by the above-mentioned breaches of international
law by Israel includes al1the damagesthat will not be compensated by restitution.For
instance, even if their land is restored to the farmers,the orchards replanted, and their
houses rebuilt, they will still need to be compensated for the loss of income and
profits during the years when they were deprived of theirproperties.
(2) Consequencesof a penal character
630. In conformity with its obligations under international humanitarian law,
Israel is bound to search for and bring before its courts persons alleged to have
committed, or to have ordered to be committed, grave breaches of international
humanitarian law, and to take measures necessary to suppress any other breaches of
503
504 Factoy at Chorzbw,Merib, 1928,P.C.I.J., SeriesA, No. 1727.
Gabcikovo-NagymarosProject (Hungay v. Slovakia),Judgment, I.C.J. Reports 1997,7,
at 81, para. 152.international humanitarian law arising from the construction, operation andlor
planning of the Wall.
(3) Legal Consequencesfor States other than Israel
(a) Principles
631. In the event that an internationallywrongful act involves a gravebreach of an
obligation arising from a peremptory nom of internationallaw al1States are obligated
to cooperate in order to bring an end to such a breach, to withhold recognition of a
situation created by such a breach, and to refrain from rendering aid or assistance in
maintainingthat situation brought about by the brea~h.~'~
632. It will be recalled that the Court in the case concerning the Barcelona
Traction,Light andPower Company,Limited pointed to the following distinction:
"In particular, an essential distinction should be drawn between the
obligations of a Statetowards the international community as a whole,
and those arising vis-à-vis another State in the field of diplomatic
protection. By their very nature the formerare the concern of al1States.
In view of the importance of the rights involved, al1States can be held
to have a legal interest in their protection ;they are obligations erga
~mnes."~O~
633. As examples of obligations erga omnes the Court referred to obligations
which "derive, for example, in the contemporaryinternational law, from outlawing of
505 See commentaries on article 38, Commentaries to the drafi articles on Responsibility of
States for intemationally wrongful acts adopted by the Intemational Law Commission at its fifty-third
session(2001), Report of the International Law Commission on the work of its FifS-third session,
Officia1Records of the General Assembly, Fifty-sixth session, SupplementNo. 10(A/56/10), page 230.
506 Barcelona Traction,Light andpower Company,Limited, Judgment, I.C.J.Reports 1970, p.
3, at 32, para. 33.acts of aggression, and of genocide, as also fiom the principles and rules concerning
the basic rights of protection fiom slavery and racial dis~rimination."~~~In its
Judgment of 30 June 1995 in the case concerning East Timor, the Court considered
that "Portugal's assertionthat the right of peoples to self determination, as it evolved
fiom the Charter and from United Nations practice, has an erga omnes character, is
irreproachable."508 As the Court stated in the Opinion it gave in 1996concerning the
Legaliq of the Threat or UseofNuclear Weapons,fundamentalrules of humanitarian
law applicable in anned conflicthave an " intransgressible " ~haracter.~'~
634. It follows fiom the above that among the violations of international law
entailed by the construction and operation of the Wall in the Occupied Palestinian
Territory, including East Jerusalem, Israel has committed, and is still cornmitting,
grave breaches of peremptory noms of international law imposing erga omnes
obligations,in relationto:
-
The right of people to self-determinationas it has developed under the United
Nations Charterand in internationallegalpractice;
- Theprinciple of non-acquisitionof territoryby force;
-
The fundamentalrights of the humanbeing;
- Fundamental rules of international humanitarian law applicable in armed
conflict.
635. Articles 40 and 41 of the ILC Articles are particularly relevant in the present
case. Theystate as follows:
- -
507 Id., atpara.34.
508 East Timor (Portugal v.Australia),Judgement, Z.C.J.Reports 1995,p. 90, at 102,para.29.
509 Legaliiy of the Threat or UseofNuclear Weapons,Advisory Opinion,I.C.J. Reports 1996,p.
226, at257, para.79. "Article40
Application ofthischapter
1. This chapter applies to the international responsibility which is
entailedby a seriousbreach by a State of an obligation arising under a
peremptorynom of general international law.
2. A breach of such an obligation is serious if it involves a gross or
systematic failureby the responsible Stateto fulfilthe obligation.
Article 41
Particular consequences of a serious breach of an obligation under
this chapter
1. States shall cooperate to bring to an end through lawful means any
seriousbreach withinthe meaning of article 40.
2. No State shall recognize as lawful a situation created by a serious
breach within the meaning of article 40, nor render aid or assistance in
maintainingthat situation [...]."
636. It is particularly appropriate to recall these Articles in the context of the
possible attempt by States to accept and recognize the Wall as a fait accompli,
provided some of its excesses stemming from Israel's fundamental violations of
internationalhumanitarianlaw and human rights are mitigatedby Israel. According to
these Articles, certain obligations are incumbent on third States, including especially
(i) the obligation to cooperatewith a view to putting an end to any violations, (ii) the
obligation not to recognize any wrongfùl situation, and (iii) the obligation not to
render aid or assistancein maintainingsuch a situation. (i)Theobligationto cooperate witha view toputting an end to
any violations
637. Faced with Israel's grave breaches detailed above, a concerted and
coordinatedeffort of al1States is necessary to put an end to these breaches and their
effects. Itis recalledthat numerous calls to this effect have been made during the past
mon th^. ^ 'r example:
- Declaration by the Presidency on behalf of the European Union on the situation
in the MiddleEast, 11 September2003:
"In order for these measures [a.o., freezingal1settlement activities and
the building of the securitywall] to be effectivelyimplemented,the EU
reaffirms its commitment and the need for a determined and co-
ordinatedactionby the International~ommunity."~~ l
-Final Communiquéof the Tenth Sessionof the Islamic Summit Conference (Session
of Knowledge andMorality for the Progress of Ummah) Putrajaya - Malaysia, 20-21
Sha'aban 1424 H., 16-17October2003:
510
See also the declarations made by the following deleg:tions
- Pakistan: "The international community has an obligation to prevent the unlawful annexation of
Palestinian land. There is little doubt that the separationwall, if completed, would negate the possibility
of a contiguous, viable Palestinian State. The Government of Israel must, therefore, be persuaded to
cease, and reverse, the construction of the wall, which we deplore" (General Assembly, Tenth
Emergency Special Session, 21st meeting, 20 October 2003, UN Doc. AIES-lOPV.21, p. 18) ;
- United Arab Emirates: "We call on the international community to compel Israel immediately to stop
the killing and aggression, to end the practice of closure and siege and to remove the separation wall,
which willlead to a humanitanan and economic disaster in the West Bank. We also demand that Israel
allow international humanitarian organizations to deliver emergency assistance to the Palestinian
people, in accordance with international humanitarian law, especially the Fourth Geneva Convention"
(UN Doc. Al58PV.38, pp. 2-3);
- Kuwait: "We condemn those Israeli practices and policies [a. o. the construction of the wall], which
have aggravated the suffering of the Palestinian people, and we call upon the international community
to fulfil its obligations and compel Israel to respect international legality and cease forthwith pursuing
those policies that will undoubtedly lead to fùrther deteriorationof the security situation and to increase
instability in theegion" (General Assembly, Tenth Emergency Special Session, 21st meeting, 8
511ember 2003, UN Doc. NES-10PV.23, p. 2).
Declaration by the Presidency on behalf of the European Union on the situation
in the Middle East, 11 September 2003, Pl031108, 12400103 (Presse 261), "[...]14. The Conference requested the international community to
compel Israel to end the construction of - and remove - the apartheid
wall which encroaches upon the Palestinian land, tus it into
Bantustans, imposes unjust political realities and further deteriorates
conditionsin the region [...."5 l2
- Malaysia,onbehalf of the Non-Aligned Movement:
"Pressure must be brought to bear on Israel to comply with the
demandsof the internationalcommunity in respect of this ~a11."~'~
-
Senegal, Chairman of the Committee on the Exercise of the Inalienable
Rights of the PalestinianPeople:
"My delegation appeals for a mobilization of the international
cornrnunity,including the United Nations - particularly the Security
Council - and the Quartet of mediators, to make the Israeli
Government listen to reason by demanding an immediate halt to the
building of this wall of discord and the complete destruction of its
initial segments."514
- Report of the UN Committee on the Exercise of the Inalienable
Rights of the PalestinianPeople:
"73. The Comrnittee stresses its strong opposition to the illegal
constructionby the occupying Power of the wall in the Occupied West
Bank and in areas close to East Jerusalem. The Committeereminds the
Government of Israel that this construction has devastating immediate
and longer-term implications for the livelihood of the Palestinian
people. The construction also endangers international efforts aimed at
resolving the conflict and realizing the vision of a region where two
States, Israel and Palestine, would live side by side in peace and
security,as outlinedin the Road Map. With these concernsin mind, the
Committee calls upon the international community, most notably the
Security Council and the General Assembly, to attach the necessary
importance to this issue, with a view to stopping the de facto
http://www.europa.eu.int/rapid~start/cgilguesten.ksh?p~acti oSnOgeA~x~gt&ldoc
=PESClO3/l
512N&display.
513 Text availablehttp://www.oic-oci.org/en gii-c-/i.t/.O/l
UN Doc. SlPV.4841,p. 26.
514 General Assembly, Tenth Emergency Special Session, 21st meeting,20 OctobeUN2003,
Doc. AIES-10PV.21, p. 16. See also the declaration made before the Security CoUNcDoc.
SPV.4841, p. 53. annexation of Palestinian land and the construction of the wall by the
occupying~ower."~~~
638. In conclusion, al1States are under an obligationto CO-operatewith each other
to ensure respect by Israel for its obligations under international law. In particular, the
High Contracting Parties to the Fourth Geneva Convention are under obligation to
recognize the dejure applicability of the Fourth Geneva Convention to the Occupied
Palestinian Territory, including the Closed Zone. Moreover, under Article 1 of the
Convention al1third States have the duty "to respect and to ensure respect for the
present Convention in al1circumstances." Consonantwith their obligations under that
Convention to prosecute grave breaches of humanitarian law, each third State should
insure that anyperson involvedwith the above-mentionedcrimesbe duly submittedto
its penaljurisdiction.
639. States are alsonder an obligation to CO-operatewith the responsible United
Nations andother bodies, includingthe United Nations Secretary-General,the Special
Rapporteur of the United Nations Commission on Human Rights on the situation of
human rights in the Palestinian territories occupied by Israel since 1967, the United
Nations Relief and Works Agency for Palestine Refugees in the Near East, and the
International Committee of the Red Cross, in the discharge of their established
functions and responsibilities in the Occupied Palestinian Territory, including East
Jerusalem, and to refrain from any conduct that may hinder such bodies fiom doing
SO.
515 Official Records, Fifty-eighth Session, Supplement No. 35 (A/58/35), 9 October 2003,
http://domino.un.org/unispal.nsf/9a79 8ab002288d8561518e6c6dce8ac85256de300
5376b8!OpenDocument. (ii) Obligationnot to recognize wrongfiulsituations
640. The ILC has referred to the obligation of the international community as a
whole not to recognize as lawful those situationswhich have been created by a serious
breach withinthe meaning of Article 40 of the ILC Articles:
"The obligation applies to 'situations' createdby these breaches, such
as, for example, attempted acquisition of sovereignty over territory
through the denial of the right of self-determination of peoples. It not
only refers to the forma1 recognition of these situations, but also
prohibitsacts which would imply such recognition."516
641. The Court expressed the pertinent principle in the Advisory Opinion it gave
in 1971in the Namibia Case:
"the termination of the Mandate and the declaration of the illegality of
South Africa's presence in Namibia are opposable to al1States in the
sense of barring erga omnes the legality of a situation which is
maintained in violationof international la^."^'^
642. Subsequently, the Court's Judgment of 27 June 1986 in the Nicaragua Case
referred to the obligation not to recognize any territorial acquisition obtained by
force.518
643. Consequently, al1States are under an obligation not to recognize any Israeli
sovereignty over the Occupied Palestinian Territory, including East Jerusalem, or any
changes in the legal status of the Closed Zone as a result of Israel's construction and
operation of the Wall. In particular, they are under an obligation to recognize the
516 Commentaries to the draft articles on Responsibility of States for intemationally wrongful
acts adopted by the International Law Commission at its fifty-third session (2001), Report of the
Internationalaw Commission on the work of its Fifty-third session, Official Records of the General
Assembly, Fifty-sixth session, SupplementNo. 10(A/56/10), p. 287, para. 5.
517 Legal Consequencesfor States of the ContinuedPresence of South Africa in Namibia (South
WestAfrica) notwithstandingSecurity CouncilResolution 276 (1970),Advisory Opi1C.J.Reports
1971,p. 16,atp. 56, para. 126.invalidityof al1legislative and administrativemeasures, policies, actions and practices
taken by Israel in relation to the Wall. The well-established principle of the non-
recognition of unlawful annexations in particular dictates this legal consequence for
third States.
644. Furthermore - and without prejudice to the fact that the Security Council
and the General Assembly have declared that any settlements in the Occupied
Palestinian Territory, including East Jerusalem, (which necessarily includes
settlementswithin the Closed Zone), are unlawful under internationallaw - al1States
are under an obligation to recognize the illegality of any Israeli settlements
established in the Closed Zone within the Occupied Palestinian Territory, including
East Jerusalem, and to refrain from any acts and in particular any dealings with the
Governmentof Israel implyingrecognitionof the legalityof such settlements..
(iii)Theobligation not to renderaid or assistance to maintain
an unlawfulsituation
645. Recent State practice shows that third States are perfectly conscious of their
obligationsin this regard.
646. Notwithstanding the fact that they apply primarily to States, the above
obligations may be considered to apply by analogy to intergovernmental
organisations. In this regard, the United Nations General Assembly and the UN
Secretary-General,in taking certain positions that are in the record before the Court,
518
Military and Paramilitary Activities in and against Nicaragua (Nicaragua v.United States
ofAmerica), I.C.J. Reports 1986,para. 188.have shown that they represent the clear will of the international comrnunity in
relation to thematter of the Wall.
647. Many States have tried to obtain the same involvement from the United
Nations Security Council. Some delegations have spoken openly on the subject. For
example:
- Iran:
"Thus, given the enormity of what is at stake and the international
consensus on the need to stop the unlawful construction of the wall in
the West Bank, it is incumbent upon the Security Council to live up to
the expectations of the internationalcommunity and take the necessary
action with a view to upholding international law. In particular, the
time has corne for the Security Council to demand that the separation
wallbe stoppedand rever~ed."~'~
- Saudi Arabia:
"Given both the permanent international responsibility of the United
Nations for the Palestinianquestionuntil such a time as it is resolved in
al1 its aspects as well as the provisions of the Fourth Geneva
Convention relative to the Protection of Civilian Persons in Time of
War, the Kingdom of Saudi Arabia calls upon the Security Council to
fully assume its responsibilities and discharge its obligations by
asserting the illegitimacy of erecting such a wall and by calling for
Israelto halt its construction im~nediatel~."~~~
648. It is regrettable that because of the use of a veto by one permanent Member,
the Security Council, on which the Members States have conferred "primary
responsibility for the maintenance of international peace and security" and which is
supposed to act on their behalf " in carrying out its duties under this responsibility "
519
520 UN Doc. SlPV.4841,p.27.
UN Doc. SlPV.4841,pp.36-37.(United Nations Charter, Article 24), was unable to respond to the cal1 of the
internationalcommunityas a whole on this crucial matter.
649. Consequently,al1States are under obligation to refrain fi-omany acts and in
particular any dealingswith the Government of Israel lending support or assistance to
be used in connection with the construction, operation andfor planning of the Wall
and any Israeli settlements within the Closed Zone in the Occupied Palestinian
Territory,includingEast Jerusalem.
(4) General Conclusion
650. As a consequence of the grave breaches of international law mentioned in
Chapters 7, 8, 9 and 10,Israel is bound:
- in conformity with its obligation of cessation, to cease forthwith the
construction and operation of the Wall, and abide by the Security Council's
resolutionsconcerningthe settlementsillegally establishedin the ClosedZone;
- in conformity with its obligation of restoring the status quo ante, to dismantle
forthwith al1 parts of the wall that step across the Green Line into the
OccupiedPalestinianTerritory;
- in conformity with its obligation of compensating for the damage caused, to
indernni@the injured for al1their material and persona1losses arising from
Israel'sviolationsof its internationalobligations;
- in conformity with its obligations under international humanitarian law, to
search for and bring beforeits courts persons alleged to have committed grave breaches of international humanitarian law arising fiom the construction,
operation andforplanning of the Wall.
651. As a consequence of the grave breaches of international law mentioned in
Chapters 7, 8,9 and 10,other Stateshave:
- the obligation to cooperate with each other and with the responsible international
bodies, with a view to putting an end to Israel's violations;
- the obligationnot to recognize these wrongful situations;and
-
the obligation not to give aid or assistanceto maintain such situations. Chapter 12. CONCLUSIONS
652. For the reasons set out in this Written Statement, Palestine respectfully
submitsthe followingconclusionsto the Court:
1. The Courtis competent to give the advisory opinionrequested by the General
Assembly in its Resolution AIES-10114 of 8 December 2003, and there are no
compelling reasonspreventingthe Court from giving its opinion.
II. The Court should reply in the following manner to the question put by the
General Assembly:
A. Israel's rights and obligations in the Occupied Palestinian Territory,
including in and around East Jerusalem, are those of an Occupying Power, governed
by the provisions of internationalhumanitarian law, including in particular the Hague
Regulations,the Fourth Geneva Conventionand customaryinternationalhumanitarian
law, and by the provisions of internationalhuman rights law, including in particular
the International Covenant on Civil and Political Rights, the International Covenant
on Economic, Social and Cultural Rights, the Convention on the Rights of the Child
and customaryinternational human rights law.
B. Israel has no right to construct and operate the Wall in the Occupied
Palestinian Territory,includingin and around East Jerusalem.C. The construction and operation of the Wall violates international
humanitarianlaw, in particular for the followingreasons:
1. The Wall is largelybuilt in the OccupiedPalestinianTerritory;
2. The Wall is part of a continuing attemptby Israel to changethe legal
status of the Occupied Palestinian Territory, including East Jerusalem, and to
effectthe defacto annexationof Palestinianterritory;
3. The construction of the Wall and the surrounding areas has entailed
the destruction of Palestinian property contrary to Article 53 of the Fourth
Geneva Convention;
4. The construction of the Wall and the surrounding areas has entailed
the requisitioning of Palestinian property contrary to Article 52 of the Hague
Regulations;
5. Contrary to Article 64 of the Hague Regulations, the construction
and operation of the Wall fails to respect the laws in force in the occupied
country;
6. The construction and operation of the Wall is incompatible with
Israel's dutiesunder Article 55 of the Fourth Geneva Convention in respect of
ensuring food and medical supplies to the population of the Occupied
PalestinianTerritory;
7. The construction and operation of the Wall is a form of collective
punishment contrary to Article 33 of the Fourth Geneva Convention, and
Article 75 of Additional ProtocolI which in this respect represents customary
international law;
8. The construction and operation of the Wall is a disproportionate
responseto any threat that might be consideredto face Israel.D. The construction and operation of the Wall violates international human
rights law, in particular forthe followingreasons:
1. The construction and operation of the Wall violates the right to
fieedom of movement, as established in particular in Article 12 of the
Intemational Covenant on Civil and Political Rights and Article 13 of the
UniversalDeclarationof Human Rights;
2. The Wall violates Israel's obligations under Article 6 of the
InternationalCovenant on Economic, Social and Cultural Rights in relation to
the right to eam a living;
3. The construction and operation of the Wall violates Israel's
obligations under Articles 11 and 12 of the International Covenant on
Economic, Social and Cultural Rights and Article 25 of the Universal
Declarationon Human Rights, and under Articles 24 and 27 of the Convention
on the Rights of the Child, in respect of the provision of adequate food and
livingconditionsand medical care and social services;
4. The construction and operation of the Wall violates Israel's
obligations under Article 13 of the International Covenant on Economic,
Social and Cultural Rights and Article 26 of the Universal Declaration on
Human Rights, and under Article 28 of the Convention on the Rights of the
Child,in respect of the right to education;
5. The construction and operation of the Wall violates the rights of
Palestiniansin the OccupiedPalestinian Territoryto family andcultural life, as
established inter aliin Article 17 of the InternationalCovenant on Civil and
Political Rights andArticle 16of the Convention onthe rights of the Child; 6. The construction of the Wall has entailed the confiscation of
property without legal justification and without proper legal process, contrary
to customary international law as reflected in, inter alia, Protocol 1 to the
EuropeanConventionon HumanRights;
7. The seriousness of the violations listed in the preceding paragraphs
is aggravated bythe fact that the operation of the Wall explicitly discriminates
against Palestinians and is applied to Palestinians in a manner that degrades
and humiliatesthem.
E. The construction and operation of the Wall violates the right of the
Palestinianpeople to self-determination,in particular in the following respects:
1. To the extent that the Wall departs fiom the Green Line and is built
in the Occupied Palestinian Territory, including East Jerusalem, it severs the
territorial sphere over which the Palestinian people are entitled to exercise
their right to self-determination.To the same extentthe Wall is also a violation
of the legal principle prohibiting the acquisition or annexation of territory by
theuse of force;
2. The route of the Wall is designed to change the demographic
composition of the Occupied Palestinian Temtory, including East Jerusalem,
by reinforcing the Israeli settlements and by facilitating their extension, in
disregardof the fact that these settlementsare illegal according to international
law;
3. By the creation of Palestinian enclaves, discrimination against and
humiliation of the Palestinian population, and the creation of unbearable
economicconditions,the Wall is having the clear and foreseeable effect of the forced displacement of the Palestinian population into increasingly limited
areas regarded as safe and livable for Palestinians;
4. The Wall is part of a policy of reducing and parcelling out the
territorial sphere over which the Palestinian people are entitled to exercise
their right to self-determination,establishing non-contiguous Palestinian areas
similarto Bantustans;
5. The constructionand operation of the Wall violates the right of the
Palestinianpeople to permanent sovereignty over their natural resources in the
Occupied Palestinian Tenitory, including East Jerusalem, and destroys the
economic and socialbasis of the life of the Palestinianpeople;
6. The constructionand operation of the Wall endangers the feasibility
of a viable State of Palestine and consequently renders the 'two State' solution
of Israeland Palestine physically impossible.
F. As a consequences of these grave breaches of international law, Israel is
bound:
1. In conformitywith its obligation of cessation,to cease forthwiththe
constructionand operationof the Wall;
2. In conformity with its obligation of restoring the status quo ante, to
dismantle forthwith al1parts of the Wall in the Occupied Palestinian Territory
stepping across the Green Line, to facilitate the safe and immediate retum of
Palestiniansdisplaced as a result of the constructionand operation of the Wall,
and to restore to its owners al1property seized or requisitioned in connection
with the construction, operation andlor planning of the Wall; 3. In conformity with its obligation to compensate for the damage
caused, to indernnifj the injured for al1 their material and persona1 losses
arising from Israel's violations of its internationalobligations;
4. In conformity with its obligations under international humanitarian
law, to respect and ensure respect for the Fourth Geneva Convention,to search
for and bring before its courts persons alleged to have committed or to have
ordered to be cornmitted gravebreaches of internationalhumanitarian law, and
to take measures necessary to suppress any other breaches of international
humanitarian law arising from the construction, operation andlor planning of
the Wall;
5. To conform itself to the relevant Security Council resolutions, and
heed the will of the internationalcommunity.
G. As a consequence of these grave breaches of international law, other States
have:
1. The obligation to cooperate, with each other and with the United
Nations and other competent international bodies, with a view to putting an
end to Israel's violations of internationallaw;
2. The obligation not to recognize these wrongfùl situations; and
3. The obligation not to give aid or assistance to maintain such
situations.1have the honour to submitthis Written Statementto the Courtonbehalfof Palestine.
Dr. Nasser Al-Kidwa
Ambassador and Permanent Observer of Palestine
to the UnitedNations
New York,29 January 2004 APPENDICES
1. TABLESOFUN SECURITYCOUNCILRESOLUTIONSRESPECTING
PALESTINE
2. CLOSEDZONE PERMIT SYSTEM
3. SUMMARYOF RECENTISRAELI ACTIVITYIN CONSTRUCTIONOF
THEWALLAnnex 1 APPENDIX 1 TABLES OF UN SECURITY COUNCILRESOLUTIONS
RESPECTINGPALESTINE
This Appendix consists of tables ofpertinent UN Security Councilresolutions
respecting Palestine in general (section1),the applicabilityofthe Fourth Geneva
Conventionto the Occupied Palestinian Territory(section II), Jerusalem (sectionIII),
and Israelisettlementsin the OccupiedPalestinianTerritory(sectionIV).
This Appendix was prepared by the Permanent Observer Mission of Palestineto the
UnitedNations forpurposes only of this advisory proceeding. This document does not
purport to be complete.
1. Tablelistingpertinent Security CouncilresolutionsrespectingPalestine
(General)
Resolution Number Date Adopted RecordedVote
49 22 May 1948 8-0-3
(3abstentionswere Syria,
Ukrainian S.S.R.,U.S.S.R.)
5O 29 May 1948 Draft was voted on inparts,
no vote taken ontext as a
whole
54 15July 1948 7-1-3 (1againstwas Syria,
3 abstentionswere
Argentina, Ukrainian
S.S.R., and U.S.S.R.)
60 29 October 1948 Adopted without a vote
127 22 January 1958 Unanimous
162 11April1961 8-0-3
(3 abstentions were Ceylon,
U.S.S.R., United Arab
Republic)
237 14June 1967 Unanimous
250 27 April 1968 Unanimous
251 2 May 1968 Unanimous
252 21 May 1968 13-0-2
(2 abstentionswere Canada,
USA)259 27 September 1968 12-0-3
(3 abstentionswere Canada,
Denmark,USA)
267 3 July 1969 Unanimous
271 15September 1969 11-0-4
(4 abstentionswere
Colombia,Finland,
Paraguay,USA)
298 25 September 1971 14-0-1
(1abstentionwas Syria)
446 22 March 1979 12-0-3
(3 abstentionswere
Nonvay, U.K., USA)
452 20 July 1979 14-0-1
(1abstentionwas USA)
465 1 March 1980 Unanimous
468 8 May 1980 14-0-1
(1 abstentionwas USA)
469 20 May 1980 14-0-1
(1 abstentionwas USA)
471 5 June 1980 14-0-1
(1 abstentionwas USA)
476 30June 1980 14-0-1
(1 abstentionwas USA)
478 20 August 1980 14-0-1
(1 abstentionwas USA)
484 19December 1980 Unanimous
592 8 December 1986 14-0-1
(1 abstentionwas USA)605 22December 1987 14-0-1
(1abstentionwas USA)
607 5January1988 Unanimous
608 14January1988 14-0-1
(1abstentionwas USA)
636 6July1989 14-0-1
(1abstentionwas USA)
641 30August 1989 14-0-1
(1abstentionwas USA)
672 12October 1990 Unanimous
673 24October 1990 Unanimous
681 20December 1990 Unanimous
694 24May 1991 Unanimous
726 6January 1992 Unanimous
799 18December 1992 Unanimous
904 18March 1994 Draft was voted on in parts,
USA abstained on two
preambularparagraphs. No
vote was taken on the text
as a whole
1073 28September 1996 14-0-1
(1 abstentionwas USA)
1322 7October 2000 14-0-1
(1 abstentionwas USA)
1397 12March 2002 14-0-1
(1abstentionwas Syria)
1402 30March 2002 14-0-0
(Syriadid not takepart in
the vote)1403 4 April2002 Unanimous
1405 19April2002 Unanimous
1435 24 September 2002 14-0-1
(1 abstention was USA)
1515 19November 2003 UnanimousII. Table listing SecurityCouncil resolutions respectingthe applicability of the
FourthGenevaConventionto the OccupiedPalestinianTerritory, includingEast
Jerusalem
ResolutionNumber Date Adopted RecordedVote
237 14June1967 Unanimous
271 15September 1969 11-0-4
(4 abstentionswere
Colombia,Finland,
Paraguay,USA)
446 22 March 1979 12-0-3
(3 abstentionswereNorway,
U.K.,USA)
452 20July 1979 14-0-1
(1 abstentionwas USA)
465 1March 1980 Unanimous
468 8May 1980 14-0-1
(1 abstentionwas USA)
469 20 May 1980 14-0-1
(1 abstentionwas USA)
471 5 June 1980 14-0-1
(1 abstentionwas USA)
476 30 June 1980 14-0-1
(1 abstentionwas USA)
478 20August 1980 14-0-1
(1 abstentionwas USA)
484 19December 1980 Unanimous
592 8 December 1986 14-0-1
(1 abstentionwas USA)605 22 December 1987 14-0-1
(1 abstention was USA)
607 5 January 1988 Unanimous
608 14January 1988 14-0-1
(1 abstentionwas USA)
636 6 July 1989 14-0-1
(1 abstentionwas USA)
641 30 August 1989 14-0-1
(1 abstentionwas USA)
672 12 October 1990 Unanimous
673 24 October 1990 Unanimous
681 20 December 1990 Unanimous
694 24 May 1991 Unanimous
726 6 January1992 Unanimous
799 18December 1992 Unanimous
904 18March 1994 Draft was voted on in parts,
USA abstainedon two
preambularparagraphs.No
vote was taken on the text as
a whole
1322 7 October 2000 14-0-1
(1abstentionwas USA)
1435 24 September2002 14-0-1
(1abstentionwas USA)III. Table listingSecurity Council resolutionsrespectingJerusalem
ResolutionNumber Date Adopted Recorded Vote
49 22 May 1948 8-0-3
(3 abstentions were Syria,
Ukrainian S.S.R.,U.S.S.R.)
5O 29 May 1948 Draft was voted on inparts,
no vote taken ontext as a
whole
54 15July 1948 7-1-3( 1againstwas Syria,
3 abstentions were
Argentina, Ukrainian
S.S.R., U.S.S.R.)
Adoptedwithout a vote
60 29 October 1948
127 22 January 1958 Unanimous
162 11 Apri11961 8-0-3
(3 abstentions were Ceylon,
U.S.S.R., United Arab
Republic)
27 April 1968 Unanimous
250
251 2 May 1968 Unanimous
252 21 May 1968 13-0-2
(2abstentions were USA,
Canada)
267 3 July 1969 Unanimous
271 15September 1969 11-0-4
(4abstentions were
Colombia, Finland,
Paraguay, USA)
298 25 September 1971 14-0-1
(1 abstention was Syria)
465 1March 1980 Unanimous476 30June 1980 14-0-1
(1 abstentionwas USA)
478 20 August 1980 14-0-1
(1 abstentionwas USA)
672 12October 1990 Unanimous
1073 28 September 1996 14-0-1
(1 abstentionwas USA)IV. Tablelisting Security Council resolutionsrespecting "settlements"in the
OccupiedPalestinian Territory
ResolutionNumber Date Approved RecordedVote
252 21May 1968 13-0-2
(2 abstentionswere Canada,
USA)
267 3 July 1969 Unanimous
271 15September 1969 11-0-4
(4 abstentions were
Colombia,Finland,
Paraguay,USA)
298 25 September 1971 14-0-1
(1 abstentionwas Syria)
446 22 March 1979 12-0-3
(3 abstentionswere
Norway, U.K.,USA)
452 20 J~ly 1979 14-0-1
(1 abstentionwas USA)
465 1March 1980 Unanimous
476 30June 1980 14-0-1
(1 abstention was USA)
478 20 August 1980 14-0-1
(1 abstention was USA)Annex 2 APPENDIX2 CLOSEDZONE PERMIT SYSTEM
[Theseexamplesaregivenfor illustrativepurposes only. Theydo not constitutea
comprehensiveaccountof thesituation.]
PARTA
IMPLEMENTATIONOF CLOSEDZONE PERMIT SYSTEM
Preparedj?om field visits conductedbetween October 2003 and January 2004 by the
Palestinian Monitoring Group, NegotiationsAflairs Department, Palestine Liberation
Organization.
1.Villageof Ras Tira (Governorateof Qalqilya)
Population: 400
Location: Ras Tira is located on the western side ofthe Wall.
Permits for Permanent Residence in the Closed Zone: In October, 112men, women and
elderly individuals were refused permanent residence permits. After the head of the
village council complained to Israeli Civil Administration, the area commander issued
an additional28 permits on 28 October.
Within a single family, some members received permits while others did not. For
example, in one case a man received a permit, but his wife and his mother did not. In
some cases, children have received permits buttheir parentshavenot.
Even if farmers are issued permits, they may still be unable to work their land because
they depend on young male labourers and tractors and trucks for harvesting crops. To
date, Israeli authorities have not granted permits to workers who do not own land.
Consequently, a large number of labourers are threatened with unemployment. Many
farmers who own land are elderly or hold other jobs and are therefore unable to work
their land and harvest their crops without hiring labourers.
As of January 2004, al1of the currentresidents of Ras Tira had been granted permanent
residence permits. However, the residents who had not received them in October were
unable to leave the Closed Zone and visit or work in the neighbouring villages of Ras
'Atiya andHabla or the city of Qalqilya during November and December. Additionally,
those residents who are studying abroad or living in other villages outside Ras Tira still
have not received their residence permits. This is problematic. For example, if a Ras Tira
resident marries and moves to another West Bank village or city, they will not be
permitted to enter the Closed Zone unless they obtain a permit from Israeli Civil
Administration.
Permits to Access Land in the Closed Zone: Residents who live east of the Wall have
been unable to obtain permits to access their land located west ofthe Wall.Closure of Gates: From 4 to 24 October, gates along the Wall were closed. On 25
October,the Israeli army opened the gatestwice for fifteen minutes-between 7:15-7:30
am andbetween 1 :15-1:30 pm-but allowed only studentsto pass through.
The Israeli Civil Administration informed villagers in the third week of October that if
they refused to obtain permits, the gates would be closed to them. For this reason, on 24
October,the main gate of Ras 'Atiya wasclosed for 24 hours.
Movement of Checkpoint: Since 5 November, the Jarjouliya checkpoint has been moved
approximately 3 kilometres deeper into the West Bank to the location where the Wall
will cut through the Route 55 by-pass road. Residents of Ras Tira travelling to Qalqilya
or any other West Bank village east of the Wall must pass through this checkpoint,and
those without permits are not permitted to cross it. Those without permits are also
forbidden fiom crossing the Ras 'Atiya gate to the nearby villages of Habla and Ras
'Atiya,where approximately 8000 Palestinians live and where most of Ras Tira'sbasic
services, including doctors, schools and shops, are located. Consequently, residents
without permits are imprisoned in their own village. More than one family has
complainedthat they have been unable to take a sick child to a doctor in Habla.
2.Village ofDaba (Governorate ofQalqilya)
Population: 250
Location: Daba is situated to the west of the Wall, but its land is situated to the east of
the Wall.
Permits for Permanent Residence in the Closed Zone: In October, approximately 70 to
80 individuals did not receive permanent residence permits. On 10 November, the last
13 residents of Daba were granted residence permits. An earlier list of a number of
applicants who had not received permits was forwarded to the Israeli DCO. Many of
these applicants,instead of being granted permanent residence permits, were issued only
access permits. By December, al1residents above 12 years old had received permanent
residence permits valid for 6months, until April2004.
Permits to Access Land in the Closed Zone: In October and November, 100 permits
were granted out of about 145 applied for by the municipality. Approximately 40
permits had not been received by residents who live east of the Wall and whose land is
on the western side of the Wall. Also, businessmen had not received permits. Until 9
November, 11teachers (5 from Qalqilya and 6 fromneighbouring villages) had not been
granted permits to enter the Closed Zone to teach. On 10 November, 8 of the teachers
were grantedpermits, while 3 from neighbouring villages still had not received permits.
Also, approximately 53 of 75 permits requested for relatives on the other side of the
Wall to visitvillagers during the Eid holiday were granted.
Since the movement of the Jarjouliya checkpoint on 5 November, villagers without
permits cannotreach Qalqilya or pass through the Ras 'Atiyagate. They are confined to
the Closed Zone.
From lack of access to land on the other side of the Wall, several families have
abandoned their land, including 3 families that have no other source of income. Two
other families are visiting their land by donkey and carts, travelling a distance of 20kilometres. Farmerswho can no longer afford to work their land are sowing wheat seeds
or other low cost seeds to indicate usage and prevent the land being declared
"abandoned" and confiscated by Israel. The village has an unemployment rate of 35 per
cent. Of this figure,27 per cent are farmersunable to afford to work their land.
Permits for Vehicles in the Closed Zone: In October, no permits for cars were granted.
The procedures are onerous. When the villagerstried to apply for car permits according
to one set of procedures, the individual responsible for issuing permits at Israeli Civil
Administration changed the procedures. In November, only 5 out of the 11cars in Daba
had been grantedpermits.
Closure of Gates: The gates in Daba are identified as numbers 33, 34 and 36 and the
DCO entrante. Residents are assigned gates they can cross, as designated on their
permits, and they are not permitted through the other gates.
The opening times of the gates along the Wall are changed at the whim of Israeli
soldiers who do so without informing local villagers or heads of the village councils. Al1
the gates were closed on 24 October, and they were closed prior to that for
approximately20 days during the Jewish holidays. On 25and 26 October, the gates were
open only 3 times each day for fifteen minutes at a time-between 7:15-7:30 am,
between 1 :15-1:30pm and between 6:15-6:30pm. During the week of 2 to 8November,
the afternoon openings changed from 6:15-6:30 pm to 5:OO-5:15pm without consulting
villagers. Villagers complain that often the soldiers close the gates after five or ten
minutes, not allowing enough time for al1those waiting to cross.
Often the Israeli army arrives late to unlock the gates, preventing children from reaching
their schools-for many in neighbouring villages of Habla and Ras Attiya-on time.
Also, students are afraid to be alone with the Israeli army when the gates are opened,
and so an adult must leave work to wait with the children and escort them through.
Moreover, Daba is dependent to a high degree on services provided by neighbouring
villages or from other outside sources. For example, Daba relies on Qalqilya for health
care services. Services like garbage pick-up and resources such as solar fuel for heating
al1 come from outside Daba. Access to these needed services has been severely
hampered, and this is particularly the case with water. Water for Daba is delivered by a
UN tanker truck that comes from Kufr Thult at a cost of 65 NIS per tank. However,the
tanker truck is unable to reach the gate in time to pass through during the three limited
periods when it is open. The tanker truck also has other deliveriesto make. The Israeli
response to Daba villagers is that they must find another tanker to provide water.
However, other tankers are expensive and the fifteen minutes during which the gate is
open is not enoughtime for anytanker to make its delivery in the village.
The closure of gates has also had an impact on harvesting olive crops this last season.
During the day, workers picked the olives, and in the evening the olives had to be taken
to Kufr Thult for processing. However, because of the limited opening times of the
gates, workers were stuck outside Daba and had to sleep in neighbouring villages. The
Israeli response was to question why individualswere outside the village so late. On the
evening of 5 November, for example, one Daba villager was forced to sleep at the Ras
'Atiya gatebecause he did not have a residence permit and was prevented from returning
home. When the Head of the Village Counciltried to intervene on his behalf by pleading
with the Israeli soldiers, they threatened to arrest him. The villager was only allowedback into Daba the following morning. This kind of problem occurred in a number of
villages.
In December2003, a doctor was not allowed to pass through the Ras 'Atiyagate in order
to care for a sick child in Daba, so the parents were forced to bring the sick child to the
gate in orderto receive an injection fi-omthe doctor.
The experience of villagers at the Ras 'Atiyagate has been that at times when foreign
nationals are present, Israeli soldiers keep the gate open for the required period or even
longer. Consequently, some feel that the presence of international monitors at gates
along the Wall might alterthe behaviour of the soldiers.
Currently,the opening times for the Daba gate is 7:OO-81 :5am, 12:30-1:45pm and 4:OO-
5:15pm. According to villagers these times can Vary,and if the Israeli army reports any
problems in the area, al1gates close, as they did on 11January 2004.
Risinn Local Tension: The level of tension within local communities has risen
significantlyin the weeks following implementation of the Closed Zone military orders.
There have been heated disagreements in the village between those with and those
without permits. This level of fi-ustrationwill likely increase as those without permits
continue to be unable to reach their places of work or harvest their crops on the other
side of the Wall.
In January 2004, the mayor of Daba received a phone cal1from an Israeli officer fi-om
Civil Administration warning him that if any person, including children, came too close
to the Wall, they would be shot. He was responding to allegations that two school
childrendug a hole and crawled under the Wall in December.
Settlement Road Construction: On 27 November 2003, the Israeli military announced a
series of measures that would "ease conditions" in the Qalqilya area. One of these
measures included the re-routing of the Alfe Menashe settlementtraffic to a new feeder
road that will be constructed connecting Alfe Menashe to the new by-pass road
(connectingthe Shornron settlement bloc to the Nirit settlement).This new by-pass road,
22 meterswide, will cross through the village of Daba.
3.Village of 'Azzun'Atma(Governorate ofQalqilya)
Population: 1500
Location: 'Azzun 'Atmawill be entirely enclosedwithin an enclave by the Wall on three
sides. It will be completelyseparated and isolated from the neighbouringvillages of Beit
Amin and Sannirya.Al1threevillages are closely linked. Many families from each of the
villages are related to oneanother. Farmers own greenhousesand children attend schools
in the neighbouring villages. 'Azzun 'Atmayields the highest export per dunum (114
acre) in the West Bank.
Permits for Permanent Residence in the Closed Zone: No permanent residence permits
have been granted as yet.
Permits to Access the Closed Zone: No access permits have been granted as yet. At
present, 'Azzun 'Atmafarmers are unable to reach approximately 15 per cent of thevillage greenhouses that are located in neighbouring villages on the other side of the
Wall. In the nearby village of Beit Amin, 150 villagers received permits to reach their
land in 'Azzun'Atma.
Closure of Gates: Since 30 October2003,the gate at the entrance to the villagehas been
operating. At the beginning the gates were opened three times per day. Then on the
morning of 8 November, more than one hundred villagers assembled at the gate and
managedto keep it open for over 3 hours and then again for 3 hours that same afternoon.
Today, the gate is opened at 6:00 am and closes at 7:00 pm and soldiers are stationed at
the gate.
Trucks carrying bread, poultry and other basic supplies are not permitted to enter
through the gate so al1supplies must enter the village via the "back-to-back" system.
This means that goods have to be off-loaded then loaded ont0 anothertruck on the other
side of the gate, substantiallyincreasing transportation costs. Additionally taxis are not
permitted to cross the gate so passengers must walk the 1 or 2 kilometres fiom the gate
to the village or to their farms. Therehas also been both physical and verbal assaultsby
the Israeli soldiers stationed at the gate.
Movement of Checkpoint: On 8 November, the checkpoint located near the village on
the adjacent by-pass road was moved approximately another 2 kilometres further into
the West Bank,just east of the village of Mas Ha. Residents of Sannirya,Beit Amin as
well as 'Azzun 'Atmawill have to enter and exit their villages through this checkpointat
specifictimes, and on conditionthat they hold permits.
4. Village of WadIrsha (Governorate of Qalqilya)
Population: 180
Location: WadIrsha is situated on the western side ofthe Wall.
Permits for PermanentResidencein the Closed Zone: Al1Wad Irsha residentshave been
issued permanentresidence permits.
However, homes are being destroyed. In April 2003, 5 Wad Irsha homes received
demolition orders. The datethat these orders will be implemented is still unknown as the
case is still pending in the Israeli courts. Earlier in 2003, the Israeli army destroyed a
similar shelter with a corrugated roof in Wad Irsha. The reasons given for the orders
were that thehomeswere without licenses andbuilt in "Area C."
On 11 January 2004, an Israeli officer from the Civil Administration visited the mayor
of the Arab Ramadin Bedouin (a village of approximately 280 people living in the
Closed Zone about 100metres from the village of Wad Irsha) and delivered a military
order to stop work on 6 shelters that the Bedouin are currently living in, affecting
roughly 40 people. It is has been reported that the area where the Bedouin live will be
used to expand the seulement of Alfe Menashe. Israeli Civil Administration officers
informed local officiaisin Qalqilyathat the Arab Ramadinwould have to be relocated.
Closure of Gates: Already, the daily lives of the 46 schoolchildren from the Arab
Ramadin village have been severely disrupted. Up until the beginning of January, the
Bedouin school children were permitted to use two small Israeli army controlled gatesalong the Wall. In order to pass through these gates, they would al1form a group and
would then be escorted along the Wall by the Israeli army and be permitted to exit and
re-enter two times per day. At the beginning of January,both of these gateswere sealed
shut by the Israeli army. Now, with the gates sealed the children have to travel a much
longer distance, roughly 7 km round-trip daily, in order to reach their schools.
Additionally, as there are no servicetaxis inthe ClosedZone, and since residents cannot
affordthe expense of a private taxi everyday, children must walk down to the main road
and to the Ras 'Atiyagate, then to their schoolsin Hable.
5. Village of Jayyus (Governorate of Qalqilya)
Population: 3000
Location: Jayyus is situated to the east of the Wall but approximately two thirds of its
land is situatedto the west of the Wall.
Permits to Access Land in the Closed Zone: In October, out of 300 farmers from Jayyus
over 150 did not receive permits. The Israeli Civil Administration issued 630 permits
overall, but only 100 were for principal income-earners of families dependent on
agriculture. Permits were issued to children,the elderly and to residents of Jayyus who
live and work in Ramallah or who live abroad. The 150 farmers who were denied
permits needed to accesstheir land fortheir livelihood.Israel cited "security"reasons for
the permit denials,including priorjail terms orpolitically activerelatives.
Farmers were not permitted access to their lands to irrigate their crops, which
consequently perished. The olive crop could not be harvested. Approximately one half
of the olive farmers were unable to access their land. Traders and distributors who
needed to pick up the crops to transport and sel1them could not physically get to the
crops. For those that were able to access the land, they were not permitted to bring in a
car or truck to transport the crops.
Throughout November, over 150 farmers still had not been granted permits to access
their greenhouses and land located west of the Wall. Overall,twenty five per cent of the
permits issued had still only been granted to children, the elderly, individuals living
abroad or the already deceased. In one case, a 43 year-old farmer was denied a permit,
but his father and uncle who had been dead for six years received permits. Al1permits
have been issued for only 3 months.
During the week of2 to 8 November, the Israeli army conducted several "round-ups" of
Jayyus farmers without permits, and forcibly removed them from their fields and sent
them back to the village.
By mid-December, 135 farmers had not been issued permits to access their land. Of the
300 farmers in the village, 15 households (including 7 of the 135 farmers without
permits) rely on sheep farming for their livelihood. On 18 October, the Israeli army
rounded up the shepherds and their sheep and forced them to leave the Closed Zone and
return to Jayyus, situated east of the Wall. Since then, even shepherds with permits have
not been permitted to enter the Closed Zone with their sheep. The Israeli army has
refùsed the shepherds entry and informed them that they need to get permits for their
sheep or permits to stay overnight-adding new random obstacles to accessing the
Closed Zone. For about a month, approximately 2000 sheep have been unable to grazein the ClosedZone. Also, because of the nature of grazing,the shepherds and their flock
would need to travel 5 kilometres to reach grazing land. It is not possible to make the
returnjourney on a daily basis as the sheep would have to travel 10kilometres per day.
Consequently, the shepherds have had to purchase feed for the sheep at a cost of 1000
NIS per ton (1 ton can feed approximately 150 sheep for 10 days). The shepherds have
been spendingsome 10,000NIS every 10days in order to feed the sheep, and since they
cannot affordthis cost,the sheep are being fed only every 5 days.
Permits for Vehicles in the Closed Zone: In October, no vehicle permits were granted.
This is critical because the traders and distributors are unable to reach their land or
transport crops. Throughout November, only 2 out of 3 smaller trucks used for
agriculturalpurposes had been granted permits. Villagersused to rely on 5 larger trucks
per day from outside (from Hebron and Ramallah) to transport purchased produce, but
these trucks no longer have accessto Jayyus. Furthermore, villagers have been informed
that they need to obtain permits for tractors. However, in order for permits to be granted,
ownership and insurance papers have to be submitted and many villagers do not have
these.
Closure of Gates: The gates are opened twice daily-at 8:30 am and again at 7:00 pm.
People often have to wait for the gates to be unlocked. Jayyus farmers report that often
the soldiers change the opening times of the gates without noti@ing the residents. For
instance, during one week in December, gates were opened at 8:00 am then the
followingweek it waschangedto 7:30 am causing farmersto miss the gate opening.
Prior to 25 October, the gates were closed for approximately 20 days due to the Jewish
holidays. Consequently, hundreds of trees in Falamya died because farmers could not
access their lands to irrigate them. Other trees in Jayyus, Attil, Qalqilya and Habla
similarly died. The closure of gates also destroyed approximately 90 per cent of the
Guava crop and had a severe impact on other crops.
De-Populating the Closed Zone: Ali Abu Shareb, his wife and 7 children are the only
Jayyus familyliving on the western side of the Wall. Their home was separatedfromthe
rest of the village as a result of the building of the Wall. In early January 2004, they
were visited by an Israeli officer from the Civil Administration who informed them that
they would have to move to the eastern side of the Wall. Until now, the family has been
permitted to use the southernagricultural gate, only twice daily, in order for the children
to attend school inside the village. The southern gate has been closed for over a month
for the rest of the Jayyus villagers, forcing the farmers to travel several more kilometres
daily in orderto use the otheragricultural gate in Jayyus.
6. Cityof Qalqilya(Governorateof Qalqilya)
Population: 41,500-43,000
Location: Qalqilyais enclosed on al1sidesby the Wall.
Permits to Access Land in the Closed Zone: Since 25 October 2003, roughly 400 out of
1300 (about one quarter) farmers have been issued permits to access their land. (These
figures do not account for the thousands of labourers who need access to this area of the
ClosedZone to work onthe land located within it.) Of the permits issued, approximately
20 per cent have been granted to Palestinians who are either dead or living abroad. InNovemberIDecember, the mayor of Qalqilya requested more than 100 access permits,
but only 20 newpermits were issued. Also, about 300 residents in Qalqilyahave permits
to enter Israel, but no new permits were issued throughout November. The Israeli Civil
Administration informedthe mayor that they were reviewingthe procedures.
At the beginning of the Closed Zone permit system in October, the Qalqilya
municipality followed-up regularly on permits initially delivered to them by the Israeli
Civil Administration, and applied for permits for the farmers. Since then, Israeli officers
have been encouraging Palestinians to apply individually to the Civil Administrationfor
permits. Civil Administration officers visit farmers on their farms and give them their
mobile numbers and encourage them to apply directly. This is creating tension within
the comrnunity, as those who apply for permits individually are looked upon with
suspicion fiom others. Israeli authorities are encouraging these "one-on-one" relations
reminiscent of the "pre-DCO period". Those in possession of permits sometimes do not
admit to having them, so actualnumbers now will be more difficultto determinebut to
date, approximately40 per cent of those in need of permits have received them.
Permits for Vehicles in the Closed Zone: Only 3 out of at least 20 trucks used for
agricultural purposes have been granted permits and one of these permits was not
renewed.
Closure of GatesICheckpoints: Of the 2 existing agricultural gates in the northern and
southern areas of Qalqilya, the northern gate has not been opened since 4 October.
Because of the closure of this gate, in October Jallal Zeid, one of the largest poultry
farmers in the West Bank, lost his stock of 8000 chickens as he was unable to reach
them to give them water and food. He had previously lost 7000 chickens due to the
extended closure between 19and 27 August. Additionally,the maintenance costs of the
greenhouses coupled with the difficultyin accessing markets in the area have resulted in
farmers dismantlingtheir greenhousesand selling them or using them as pens for sheep,
as access to grazing land is also limited, forcing shepherds to feed sheep grain at high
costs.
On 27 November, the Israeli Civil Administration announced to the mayor a series of
measures to ease closurerestrictions.
The first measure was for the main DCO checkpoint to be opened to taxis and other
vehicles on a 24-hour basis. This was canied out and as of 1January 2004 there are no
longer Israeli soldiers stationed at the checkpoint (although the Israeli army still
fiequently enters Qalqilya). This, however, provides little relief on movement
restrictions. After passing the DCO checkpoint, if Palestinians want to travel towards the
west then they will immediately face a checkpoint on the by-pass road (a distance of
approximately 200 meters) from the DCO checkpoint. This checkpoint, the Jarjouliya
checkpoint, was moved an additional 3 km further into the West Bank on 5 November
2003. At the Jarjouliya checkpoint,Palestinians are asked for permits to enter Israel and
without one, they do not pass. If, for instance, individuals own land in this area, they
will not reach it (as Closed Zone access permits are not honoured at this checkpoint,
only those Closed Zone residence permits for Daba, Ras Tira, and Wad Irsha). Although
cars are permitted through this checkpoint, trucks have not been permitted to access
agricultural land. Consequently, the trucks cannot transport produce from farms in the
southern area to the markets. There have been reports that farmers have been chased out
ofthese areas, as well as in the north, by Israeli armyjeeps.In the future, the Jarjouliya checkpoint will be permanently sealed by the Wall and
settlers will use a new by-pass road that will run through the village of Daba. Also,
anotherpermanent checkpointwill soon be establishednear Immatin, east on the by-pass
road. As a result, movement of people and goods between Nablus and Qalqilya will be
controlled and possibly re-routed to the north in order to by-pass the Shomron and
Kedumim settlements. Therefore, instead of Israeli soldiers controlling the DCO
checkpoint, there is a permanent checkpoint just to the West where the road will be
eventually sealed bythe Wall, and soon there will be a permanent checkpoint to the East
(now there are 'flying checkpoints'set up to the east to control movement towards
Nablus).
Furthermore, although cars are now permitted through the Azzun gate, which has been
closed for 2 years and blocked with dirt barricades, the residents of Habla, Ras Tira,
Jallud and the smaller hamlets must travel at least 15 kilometres one-way to reach
Qalqilya. Their route passes through Kufi Thult on a secondary road to the Azzun gate
and then another few kilometres downthe by-pass road to the Qalqilya DCO. Habla and
Ras Tira used to be minutes, literally a few hundred meters, away from Qalqilya. Now
those going to work or school must travel 30 kilometres a day because of the winding
maze of walls and gates in the area. Also, those travelling fiom the Azzun gate
westwards will reach the new Jarjouliya checkpoint within a few kilometres, where
Israeli soldiers are variously demanding permits to enter the Closed Zone or actually to
Israel, dependingontheir mood.
The second measure is a tunnel to be constructed between the village of Habla and the
city of Qalqilya,under the Qalqilya-Kedumim road. However, as with the gates installed
in the Wall, Israeli forces will control passage through the tunnel. Construction of the
tunnel began on 11January 2004 and is expectedto be completedwithin 3 months.
The third measure is that more agricultural gates are supposed to be installed along the
Wall. However, unless the gates are open, more gates will not make a difference.
Although more opening times of gates have been announced, this has not been
implemented.
7. Village ofAzzun (Governorateof Qalqilya)
Population: 7000
Location: Azzun is situated to the east of the Wall but its land is situated to the west of
the Wall.
Permits to Access Land inthe Closed Zone: Regardless of whether permits are issued or
not, there is no gate installed in the Wall. In order to reach their land, residents must
travel a long distance: approximately 4 kilometres to a gate near Isla to the west, and 9
kilometres to another gate near Nabi Ilyas, where other land belonging to the village is
located. In order to reach some land in the north, residents have to travel to Jayyus.
Since Palestinians are often not permitted to use main roads, reserved for the Israeli
army and settlers, they are forced to take even longer routes, often on foot, and are not
permitted to bring trucks for theharvesting of crops.8.Village of Kufr Thult (Governorateof Qalqilya)
Population: 4000
Location: Kufi Thult is situated to the east of the Wall but its land is situated in the
Closed Zone.
Permits to Access Land in the ClosedZone: Regardlessof whether permits are issued or
not, the gate at Kufr Thult is almost alwaysclosed.
9.Village of Qaffin(Governorate of Tulkarem)
Population: 9000
Location: Qaffin is situated to the east of the Wall but approximatelytwo-thirds of its
land (6000 dunums-1500 acres) is to the west of the Wall,mostly olive trees.
Permits to Access Land in the Closed Zone: There is an agricultural gate separating
Qaffin fi-omits land in the Closed Zone and the villages of Baqa Sharqiya ,Nazlat Issa
and Abu Nar, soresidents of Qaffin must apply for permits to access their land. In early
November, 300 individualsreceived permits to access their land in the Closed Zone. A
few weeks later, another 300 farmers received permits. Approximately 700 Qaffin
families have either lost land or their land is isolated as a result of the Wall, so nearly
2000 people are in need of permits. Qaffin has an unemployment rate of over 80 per
cent. As with many West Bank villages, prior to the intifada, the majority of the
residents worked inside Israel.
The Qaffin farmersreceived ClosedZone permits for one month. Their permits were not
renewed by the Israelis and the reason given was that there are mostly olive trees in the
Closed Zone and since the olive season is in October andNovember,the season is over.
10. Village of Zayta (Governorate ofTulkarem)
Population: 3000
Location: Zayta is situatedto the east of the Wall,but more than 80per cent of its land is
situatedto the west of the Wall. Zayta'slandto thenorth is enclosed by two Walls and to
the south by one. The majority of the residents rely on their land fortheir livelihood.
Permits to Access Land in the Closed Zone: In October, 350 individuals were denied
permits. On 22 October, only 30 farmers of the 380 names submitted were granted
permits. The permits were provided at a gate. However, not al1of the 30 farmers with
permits were permitted access to their land. Others that reached their land remained
there and slept on the ground for fear of being cut off entirely from further access.
Israeli claims it is refusing permits on security grounds. There are cases in which some
family members have been issued permits while others in the same family have not. For
example, in one case, a father was refused a permit, but his wife and daughters were
granted permits. Consequently,the principal income earner could not reach his land, and
without the father being granteda permit,the daughter would not go to work on the land
either. According to the mayor of Zayta, in one family of 12 in Shweika (Tulkaremarea), only the three females were granted permits while the nine males were not. Israel
cited "security" for its decision. Being olive farmers, this family was unable to harvest
their olive crop.
By December, out ofroughly 380 farmers,only 100had been issued one month permits
to access the Closed Zone. Some of the permits are being renewed and some ofthem are
not, but no new permits are being granted. Owners of greenhouses are generally not
being issued permits. Consequently, only 30 dunums (7.5 acres) of land are currently
housing greenhouses, out of 600 dunums (150 acres) of land once dense with
greenhouses. Farmers have dismantledtheir greenhousesand moved them to the nearby
village of Illar, east of Zayta, because they can more easily access this area. Four
greenhouse owners have been denied permits for "security" reasons, including 70 year-
old Ahmad Abu Jaser, who owns 13 dunums (3.25 acres) of greenhouses. Landowners
are renting their land to farmers with permits, sometimes for no charge, in order to
maintain usage of the land and prevent it fiom being declared "abandoned". Overall,
smaller vegetable plots are replacingthe many greenhouses that once covered this area,
reversingthe level of development.
One Zayta farmer andhis familywere separatedfiom the rest ofthe village as a result of
the building of the Wall. In August 2003, 75 year-old Zikrallah Aqad was forced to
move his 3 children into the villageto live with relatives on the eastern side of the Wall,
in order for them to attend school. As farmingis the sole sourceof income for Zikrallah
and his family, he and his eldest daughter have remained on his 7 dunum (1.75 acres)
farm, but as ofJanuary 2003, onlyZikrallah had been granted a Closed Zone permit and
his daughterNajah had not. In September2003,Zikrallah's electricity was cut as a result
of construction of the Wall and he remained without it for more than 20 days. During
that time, the mayor of Zayta made several pleas to the Israeli Civil Administrationfor
the electricity to be repaired. Finally, the Palestinian Electricity Company was permitted
to enter the area and repair the wires.
Life is becoming increasingly difficult for Zikrallah, as he now must travel several
kilometres in order to reach his own village and the road that he uses will eventually be
cut as a result of the building of the second Wall in the area. Despite several pleas by
the mayor of Zayta and Zikrallah to the Israeli Civil Administration to install a gate for
Zikrallah, so that his family can remain together, no improvements have been made.
Instead, Zikrallah was visited by an Israeli officer in September2003 who told him that
no gate or special facilitieswould be made for him.
Permits for Vehicles in the Closed Zone: No permits for cars/tmcks have been issued.
Closure of Gates: The area around Zayta has 3 gates, 2 in the village for agricultural
purposes andthe Baqa Sharqiyagate through which vehicles canpass. The southern gate
has been closed permanently since it was installed approximately one year ago. The
north-western gate opens in the direction of Israel and therefore farmers have not been
able to enter Israel and re-enter the West Bank to reach their land south of Zayta. This
gate is supposed to be open at 06:30, 12:30 and 16:OOfor 15 minutes at a time.
However, the opening times have never been consistent. Sometimes the gates are only
open twice a day or they are opened earlier or later than the designated times. In
October, the gates of Zayta were closed for 20 days straight during the Jewish holidays.
They were opened on 25 and 26 October, but only two to three times each day for five
minutes at a time-at 6:00 am, 12:OO noon and 6:00pm.Farmers attempting to drive through the Baqa Sharqiya gate have been denied passage,
as have teachers and doctors with permits. For instance, on 3 December, teachers and
doctors were denied passage through the Baqa Sharqiya gate without reason. Border
police used to control the gates, but they have now been replaced by the Israeli army.
This has led to fewerbeatings and harassment,but less flexibilityin passagethrough the
gates.
Of the 380 farmersin Zayta, 65 are olive farmers and none of these were ableto access
their land to pick olives this last season.
Movement of Checkpoint: On 24 November, the Nazlat Issa checkpoint was moved a
further 2 kilometres into the West Bank, past Baqa Sharqiya to near the Qaffin gate.
Since then moving goods from Israel to the West Bank has become more difficult.
Merchants have been told to use the Taybe checkpoint (the main Tulkarem checkpoint)
and they are often turned back from the Qaffincheckpoint-enabling Israel,therefore, to
control the movement of Palestinian goods as well as people. Furthermore, an "Abu
Disu-styleconcrete Wall has been erected between Baqa Sharqiya and Baqa Gharbiya.
Israeli media reported that conditions in the area would be eased and the area would be
opened to al1 of the neighbouring village residents. It was reported that the Wall
currently under construction closer to the Green line, separating Baqa Sharqiya from
Baqa Gharbiya, would be used instead of the Wall constructed 3 km deeper into the
West Bank. However, there have been no changes on the ground, nor any easing of
passage at gates. On the contrary, villagers report an increased use of tear gas and both
physical and verbal harassment by the Israeli army at the gates.
11.Village of Khirbet Jabara (Governorateof Tulkarem)
Population: 310
Location: Khirbet Jabara, south of Tulkarem, is situated on the western side of the Wall.
It is almost completely dependent on Tulkarem for basic and other services, including
schools and health care.
Permits for Permanent Residence in the Closed Zone: In October, 12 to 15 permanent
residence permits were refused, affecting approximately 50 people (12 to 15individuals
and their family members). The reasons for refusa1 included "security" issues and
computer problems. As a result of the rejection of these permit applications, and on
principle rejecting the system altogether, the remainder of the villagers (al1 but
approximately20 to 40 out of 310)refused to obtain permits or accept permits that were
unilaterally issuedby Israeliauthorities.
In the second week of November, however, after punitive denial of movement, 30
individuals succumbed and accepted permanent residence permits. Then again on 20
December 2004, the remainder of those refusing to obtain permits were detained at the
Tulkarem checkpoint until they agreed to accept them. Additionally, those who were
rejected permits for "security reasons" were granted residencepermits,but valid for only
three months, while the othervillagers received residence permits valid for one year.Villagers do not see any benefits to the notion of permits. Rather, they Say that the
permit system and procedures are only intended to make people'slives difficult. Under
the permit system, a 12year-old boy or girl, for instance, will have to go to the Israeli
DCO in order to renew their permits once they expire. Villagers questioned whether the
permits will actuallybe renewed.
Many of the farmerswere unable to harvest their crops or market their products this last
season. About 30 to 40 farmers with land east of the Wall have either stopped or
significantly reduced their farming activities, on open land, in greenhouses as well as
raising chickens. Maintaining greenhousesis costly and if the farmers cannot trade their
produce then keeping them is no longer worth the expense. It is also expensive to repair
greenhouses (villagers spent some 30,000 NIS for the plastic forthe greenhouses). Early
in October, one farmer repaired his greenhouse-located within 500 meters east of the
Wall-only to have it destroyedthe same month by the Israeli army when a flare landed
on it and burnt the plastic.
Residents of the nearby villages of Ar Ras, Kafi Sur, Kafi Jarnrnal,Kafi 'Abbush, Far'un
and the city of Tulkarem are unable to access the land they own in Khirbet Jabara. Of
those who have applied, many have been refused permits, some for "security" reasons.
One 60 year-old man fi-omAr Ras has applied 3 times, to access his land and visit his
daughter in Khirbet Jabara, but he keeps being refùsed a permit without any stated
reason. Most of the residents of Ar Ras were unable to visit their relatives in Khirbet
Jabara during the Eid holiday. Even those owners of land in Khirbet Jabara who have
been granted permits have been unable to harvest their olive crops because either
workers or capable family members have not been granted permits. A proportionally
greater number of small children and the elderlyhave been granted permits.
Permits for Vehicles in the ClosedZone: No permits for vehicles have been issued.
Closure of Gates: In October, the gates were closed for approximately 26 days, except
for 2 days when they were open for pedestrians only. After the villagers refùsed to
obtain permits, the gates were open only for students and teachers in order to get to
school. However, children and teachers are often late to school because the gates are
opened late. Furthermore, for more than ten days, the villagers, not holding permits,
were refused passage through the checkpointto Tulkarem.
Throughout November, still only students (and later some farmers) were permitted to
cross the one eastern gate. Ever since the construction of the Wall approximately one
year ago, the Israeli army has placed a cement block in front of the gate, so no vehicles,
including buses and cars can enter or exit through it. The school bus, which used to
come fiom the village of Ar Ras, is not able to reach the village to pick up the students
of Khirbet Jabara. Instead, children have to get to the gate by themselves, on foot or by
car, wait for the Israeli soldiers to open it, and then walk approximately 500 meters to
catch the bus from Ar Ras. On 9November, children got wet having to walk and wait in
the rain for thesoldiers to open the gate. On 10November, in particularly heavy rain on
a cold day, children were kept at the gate from 12:OOnoon until 1:45pm waiting for the
soldiers to open it.
On 7 and 8 November, the Israeli army opened the gates fiom 7:00 am until2:OOpm, in
the villagers'opinion because of the media attention they have been receiving, including
a visit by BBC. By 9 November,the Israeli army reverted to keeping the gate closed andopening it at 7:00 am for only fifteenminutes and again at 1:45pm for a few minutes for
the studentsto cross.
In December, in additionto the Ar Ras and main gate, a third gate was added to the Wall
inside the village near the entrance. Now school children have to pass through three
instead of two gates before making the journey to Ar Ras to catch the school bus. They
have to pass through one gate, walk 20-30 meters to the main gate, and then after
passing through walk another 20-30 meters to the third gate. Cars are not allowed
through the gates. Many children have to walk 2 kilometres to the first gate and have
been getting wet from the rain and sick from the cold weather. The gates are controlled
by the army and are only open in the morning and afternoonfor school children.
Closure of Checkpoint: The main checkpoint for entry to and exit from the village is
located at the intersectionof the by-pass road and the road that connects Khirbet Jabara
to Tulkarem. Before 7 November, Israeli soldierswere preventing residents from leaving
the village without permits. However, thereafter, the army reverted to the previous
system in place, by which villagers could only pass the checkpoint if their name and
identification number were listed at the checkpoint. On 8November,villagers were able
to pass through on foot, but farmers were not permittedto bring their produce or poultry
through the checkpoint.
Most villagers can pass through the main checkpoint because their names have been
placed on a list at the checkpoint.Residents whose names are on the list are ableto drive
small private cars through. However, other cars and trucks with Palestinian license
plates, even if the individual has a permit, cannot pass through. Passage through the
checkpoint, generally, also depends on the decision of the particular Israeli soldier
manning the checkpoint at the time. Furthermore,for 4 to 5 months, the garbage trucks
from Kafr Majlis have not been permitted through the checkpoint, so residents have
been burning their refuse.
Only trucks from Israel are allowed into the village, but farmers are unable to afford
Israeli truck costs because of the increased distance. Previously, the 4 kilometres
distance between Khirbet Jabara and Tulkaremused to cost 50 to 100NIS to transport
goods or supplies. To bring in trucks from Israel,the same distancecosts 300 NIS. If the
gate between Khirbet Jabara and Kafr Sur was open for trucks, then trucks from Israel
would not be needed. The perception articulated by farmers regarding why only Israeli
trucks are permitted access is that Israeli authorities intend to separate the villagers from
Tulkarem and the surrounding area to force the population to leave the village and move
elsewhere.
Most of the farmers are no longer maintaining their greenhouses or raising chickens
because they cannot get their produce out of the village or needed supplies, such as feed
for the chickens, into the village in the absence of affordable and viable means of
transportation. Farmers used to raise 150,000 chickens in the village. Approximately 80
per cent of 55 farmers have stopped commercial farming because they are uncertain of
their future. The other 20 per cent continue to struggle for their livelihood in small ways.12.Village of Baqa Sharqiya(Governorateof Tulkarem)
Population: 4000
Location:Baqa Sharqiya will be enclosed on al1sides by the Wall.
Permits to Access the Closed Zone: Palestinians possessing permits to visit Israel were
not allowed to pass through the Baqa Sharqiya gates into the Closed Zone. They were
told by the Israeli soldiersthat they must obtain Closed Zone permits.
The Israeli military moved the checkpoint separating the villages of Nazlat Issa and
Baqa SharqiyafromBaqa Gharbiya (inside the Green Line) a further 2 km into the West
Bank towards the Qaffin gate. There second Wall which will enclose Nazlat Issa, Baka
Sharqiya and Abu Nar is near completion. In some cases the Wall is within meters of
homes.
13. Village ofMutilla (Governorateof Jenin)
Population: 300
Location: Mutilla is an isolated and vulnerable cornrnunity situated to the west of the
north-eastern section of the Wall, near the Jordan Valley. Mutilla is also near where the
press has reportedautomatic machine guns may be installed.
Closure of Gates: Along an approximately 20 to 30 kilometres stretch of the Wall
passing near Mutilla, gates have not been installed on grounds that the Wall is on the
Green Line. However, a number of villages are separated from their olive trees. The
Israeli army has warnedvillagers over loudspeakersnot to entertheir land. This has been
enforced through intimidation and harassment of villagers by private security guards
(mandated to protect the Wall construction workers) presenting themselves as the army
and police. When several hundred olive trees were uprooted in early December, the
farmers were not permitted to collect the trees for re-planting. A band of 300 meters
from the area of construction of the Wall is considered a closed military zone,
preventingvillagers from tendingtheir olive trees.PART B
GATE CLOSUREIN QALQILYA
Source: QalqilyaMunicipality, Ministry ofLocal Government,Palestinian Authority.
Monitoringof Southern andNorthernAgriculturalGates andDCO Checkpoint
from 1 September2003 until17 January 2004
Date Southern Northern DCO Commentsfor DCO
Gate Gate Checkpoint Checkpoint
1-9-2003 Open Open Open
2-9-2003 Open Open Open
3-9-2003 Open Open Open
4-9-2003 Open Open Open
5-9-2003 Closed Open Open
6-9-2003 Closed Open Open
7-9-2003 Closed Open Closed
8-9-2003 Closed Open Closed
9-9-2003 Open Open Open
10-9-2003 Open Partially Open Only for pedestrians
open 1-8pm until1pm
11-9-2003 Open Closed Open Only for pedestrians
12-9-2003 Open Open Open
27-9-2003 Closed Closed Open Pedestrians only
28-9-2003 Closed Closed Open Pedestrians only
29-9-2003 Closed Closed Open
30-9-2003 Closed Closed Open
31-9-2003 Closed Closed Open
110-2003 Closed Closed Open
2-10-2003 Closed Closed Open
3-10-2003 Closed Closed Open
4-10-2003 Closed Closed Open 5-10-2003 Closed Closed Partially
Open
6-10-2003 Closed Closed Closed
7-10-2003 Closed Closed Open Employees only
8-10-2003 Closed Closed Open Employees only
9-10-2003 Closed Closed Open Open for employees
depending on the mood
ofthe soldiers.
10-10-2003 Closed Closed Closed Closed also for
pedestrians.
11-10-2003 Closed Closed Closed Closed also for
Pedestrians.
12-10-2003
Closed Closed Closed Closed also for
Pedestrians.
13-10-2003 Closed Closed Closed
14-10-2003 Closed Closed Closed
15-10-2003 Closed Closed Closed
16-10-2003 Closed Closed Closed
17-10-2003 Closed Closed Closed
18-10-2003 Closed Closed Closed
19-10-2003 Closed Closed Closed DCO: open only for
teachers/doctorswith
prior CO-ordinatiwith
Israeli Army
-
-20-10-2003 Closed Closed Closed
21-10-2003 Closed Closed Closed
22-10-2003 Closed Closed Closed
23-10-2003 Closed Closed Closed
24-10-2003 Closed Closed Closed
25-10-2003 Closed Closed Closed
26-10-2003 Closed Closed Closed
27-10-2003 Closed Closed Closed
28-10-2003 Closed Closed Closed
29-10-2003 Closed Closed Closed
30-10-2003 Closed Closed
Closed
31-10-2003 Closed Closed Closed
1-11-2003 Closed Closed Closed
2-11-2003 Closed Closed Closed
3-11-2003 Closed Closed Closed
4-11-2003 Closed Closed Closed
5-11-2003 Closed Closed Closed
6-11-2003 Closed Closed Open
7-11-2003 Closed Closed Open
8-11-2003 Closed Closed Open
9-11-2003 Closed Closed Open
10-11-2003 Closed Closed Open
11-11-2003 Closed Closed Open
12-11-2003 Closed Closed Open
13-11-2003 Closed Closed Open29-12-2003 Closed Closed Open
30-12-2003 Closed Closed Open
31-12-2003 Closed Closed Open
1-1-2004 Closed Closed Open
2-1-2004 Closed Closed Open
3-1-2004 Closed Closed Open
4-1-2004 Closed Closed Open
5-1-2004 Closed Closed Open
6-1-2004 Closed Closed Open
7-1-2004 Closed Closed Open
8-1-2004 Closed Closed Open
9-1-2004 Closed Closed Open
1O-1-2004 Closed Closed Open
11-1-2004 Closed Closed Open
12-1-2004 Closed Closed Open
13-1-2004 Closed Closed Open --
14-1-2004 Closed Closed Open
15-1-2004 Closed Closed Open
16-1-2004 Closed Closed Open
17-1-2004 Closed Closed OpenPART C
GATECLOSURE IN JAYYUS
Results of Analyses of Gate Monitoring Program
The World Council of Churches, and at the invitation of local Christian Churches,
launched a program called "Ecumenical accompaniment for Palestine and Israel"
(EAPPI). SinceOctober2002,and in cooperationwith the Palestinian Hydrology Group,
the Ecumenical Accompaniers based in Jayyus conducted the Monitoring Program and
data acquisitionthat dealswith Wall issues.
The Gate Monitoring Program started in November 2003. This program aims to gather
information on the times of opening of the Wall gates, duration of opening and the
number of farmers crossing the gatès. In addition, it writes down notices during
checking farmers and lettingthem in or out of their farms.
The Accompaniersmonitorboth gates at Jayyus. One called the North Gate,which is the
main Gate, and the other one called the south Gate. The Mayor of Jayyus received from
the Israeli Civil Administration "verbally" a schedule of the opening times of the gate.
Accordingto that schedule,the gate opens al1week at three times a day. The first time is
in the morning between 6:45 and 7:10. The second time is between 12:30 and 12:45.
The third time is between 16:10and 16:35.
During the period between 14November 2003 and 6 January 2004, the EAPPI reported
data for41 mornings and 28 evenings.
In general, there are too many irregularitiesin the opening times. Therefore, the farmers
have to waitseveral hours in many cases, or they cannot reach the gate while it is open.
In many cases farmers are turned back because soldiers claim they are late, while the
gate is still open. Also, the gates were completely closed on 17December. Missing data
means that EAPPI team members are out of Jayyus ornot monitoring at that time.
The Results ofAnalyses at Morning Time over41 days
Average Delay Every Day: 44 Minutes
Maximum Delay: 2 Hours and 15Minutes
Standard Deviation in the Time of Delay: 31 Minutes
Average No. ofFarmers Allowed to Cross: 41 Farmers
TotalHours Delay in Respect ofNumber of Farmers Crossed: 1209Hours
Average CheckingTime per Farmer: 34 Seconds
The ResultsofAnalyses at Evening Time over28 days
Average Delay Every Day: 35 Minutes
MaximumDelay: 1Hour and 5 Minutes
Standard Deviation in the Time of Delay: 25 Minutes
Average No. Of FarmersAllowed Crossing: 34 Farmer
Total Hours Delay in Respect of Number of Farmers Crossed: 524 Hours
Average CheckingTime per Farmer: 37 SecondsRemarkson thegraphs:
1- The durationgraph: each column showsthe number of minutes the gate is open.
a. The no. of farmers graph: each column shows the number of farmers
comingin or out is recorded.
b. The time graph: on this graph the top of the column represents the time
the gate opened.
Done By:
EAPPI:MauriceHopper
PalestinianHydrologyGroup:Abdul-Latif Khaled Time of Opening
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12/12/2003 * '~1
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EOOZII/OE
EOOZR118Z
EOOZIZ19Z
EOOZRllPZ
EOOZIZIZZ
EOOZIZlOZ
EOOZIZ181
EOOZIZ191
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passoJ3sJauiJej40 .ONPART D
IDF MILITARY ORDER: "DECLARATIONCONCERNING
CLOSINGAN AREA NO. SI2103(SEAM ZONE)", 2 OCTOBER
2003.
Translationby UnitedNations OfJiceof the Coordination of
HumanitarianAffairs
IsraelDefense Force
QrderRegardingSecurityRegulations (Judea and Samaria)(No.378),
5730-1970
DeclarationConcerningClosing an Area no. SI2103(SeamZone)
In the power vested in me asthe commanderofthe IDF forces in the
Judea and Samariaarea, and accordingto articles 88 and 90 to the
Order regarding SecurityRegulations(Judea and Samaria) (No. 378),
5730-1970 (here after- "the order") and my other authorities based on
every law and securityregulations,and facingthe special security
circumstances in the area and the need to take necessary stepsin order
to prevent terrorist attacks andthe exit of attackers fromthe areas of
Judea and Samariato the state of Israel, 1hereby declare as follows:
Definitions 1. In this order:
"The Map" - A map with the scaleof 1 150,000,
named "Declaration conceming closing an area no.
SI2103(Seam Zone)" signedby me and forms an
inseparablepart ofthis declaration.
"Israeli"- Each ofthe following:
a. Citizenof the state of Israel.
b. Resident of the stateof Israel registered in
the Population Registry in Israel,
accordingto the Law of Population
Registry, 5725 - 1965,accordingto its
validity in Israel, from time to time.
c. Whoever is entitledto immigrate to Israel
accordingto the Law of Retum, 7510-
1950,accordingto its validity in Israel,
fromtime to time.
"Barrier" - Fences, walls and patrol roads,
destinedto preventterrorist attacks and exit of
attackers fiom the areas of Judea and Samariato
the state of Israel, constructed accordingto seizure
orders detailedin section A to the appendixto this
declaration,according to theirvalidity,fiom time
to time. "Seam Zone" - Each area delimited by the barrier,
marked on the map in red line, towards the
direction of the stateof Israel.
Closingan 2. 1hereby declare that the seam zone is a closed
area area, accordingto its meaning in this order.
No person will enterthe seam zone or stay
Prohibition 3. a.
OnEntry and in it.
Stayin the area b. A person that staysin the seam zone is
obliged to exit it immediately.
Reservation of 4. a. Article 3 ofthis declaration will not
Applicability apply to:
1. An Israeli.
2. Whoever was given a permit by
me or on my behalf to enter the
seam zone and stay in it, according
to the conditionsset in the permit.
A permit based on this article can
be genera, for a specific type,
persona1or special.
b. Despite the above mentionedsection(a),
a military commander is allowed to order
that article3 of this declaration will apply
to a person orto every kind ofpeoples
enteringthe seam zone or staying in it.
Permanent 5. a. A person who has reachedthe age of 16
Residents years old, whose permanentplace of
residency, on the day this declaration
becomes valid, is within the seam zone, is
allowed to enter to the seam zone and stay
in it, as long as he has a written permit,
givento him by me to on my behalf,
testifiing that his permanent place of
residency is within the seam zone, al1
accordingto the conditions set in the permit.
b. 1. Aperson,whosehasnot reached the
ageof 16yearsold, whose permanent
placeofresidencyiswithintheseam
zone,willbe allowedtostayinthe
seamzone,withoutawrittenpermit,
accordingtotheabovementioned
section (a).
2. A person, who has not reached the
age of 16years old, whose
permanent place of residency is
within the seam zone, will be
allowedto enterthe seam zone in
one ofthe following ways: a. When having a written
permit, according to section
(a), as long as he is not
under the age of 12years
old.
b. Accompanied by aperson
whose entry was allowedby
section (a).
c. In any other way setby me
or on my behalf.
Passages 6. a. Entering the seam zone and exiting it
will by through the detailed passages
detailed in sectionB of the appendix of
this declaration, marked in blue line in
the map, al1accordingto the conditions
setby me or on my behalf.
b. For this section:
"Enteringthe seam zone" - Entering the
seam zone fromthe area [WestBank]
directionthat are not included within the
seam zone.
"Exitingtheseam zone" - Exitingthe
seam zone to the direction of the area
[WestBank] that are not included within
the seam zone.
Authorization7. Thehead of the civil administrationis authorized
to setrules and procedures as related to this
declaration.
Publication 8. a. Copies of this declaration and the attached
map will be deposited for review for those
interested during regular working hours in
the following offices:
1. Regional District Coordination
Offices (DCO).
2. Police stationsin Judea and Samaria
area.
3. Office ofthe Legal Adviser ofthe
Judea and Samaria area.
4. Offices of the Head of the
infrastructure Section in the Civil
Administration of the Judea and
Samaria area.
b. Copies of the declaration and the attached
map would be hung on the notice boards in
the Regional DCO offices, as mentioned in
section (a)(l), for a period of 3 months from the day the notification of this declaration
would be publicized.
c. The head ofthe civil administration is allowed
to set additionalmeans for publication, beyond
the detailed in sections(a) and (b).
Upholding 9. Nothing in this declaration will impair the
Laws applicability of declarations concerning closing
areas or other orders applicablein the seam zone.
Entryinto 10. This declaration will enter into force startingthe
force day of its signature.
Name 11. This declaration will be entitled: "Declaration of
closing an area no. SI2103(Seam Zone)". Appendix
SectionA- Seizure Orders
Orderregarding Land Seizure no. Tl35195 (Judeaand Samaria), 5755 - 1995.
Order regarding Land Seizure no. Tl12102 (Judea and Samaria), 5762 - 2002.
Orderregarding Land Seizureno. Tl17102 (Judea and Samaria),5762 - 2002.
Order regarding Land Seizure no. Tl18102 (Judeaand Samaria), 5762 - 2002.
Orderregarding Land Seizureno. Tl19102 (Judea and Samaria), 5762 - 2002.
Orderregarding Land Seizureno. Tl20102 (Judea and Samaria),5762 - 2002.
Order regarding Land Seinire no. Tl21102 (Judea and Samaria),5762 - 2002.
Order regarding Land Seizureno. Tl22102 (Judeaand Samaria), 5762 - 2002.
Orderregarding Land Seizure no. Tl23102 (Judeaand Samaria), 5762 - 2002.
Order regarding Land Seizureno. Tl24102 (Judea and Samaria), 5762 - 2002.
Order regarding Land Seizure no. Tl25102 (Judea and Samaria),5762 - 2002.
Orderregarding Land Seizureno. Tl26102 (Judea and Samaria),5762 - 2002.
Order regarding Land Seizureno. Tl31/02 (Judeaand Samaria), 5762 - 2002.
Orderregarding Land Seizureno. Tl33102 (Judea and Samaria), 5762 - 2002.
Orderregarding Land Seizureno. Tl34102 (Judeaand Samaria), 5762 - 2002.
Order regarding Land Seizureno. Tl35102 (Judea and Samaria),5762 - 2002.
Order regarding Land Seizureno. Tl37102 (Judea and Samaria),5762 - 2002.
Orderregarding Land Seizureno. Tl39102 (Judeaand Samaria), 5762 - 2002.
Order regarding Land Seizureno. Tl402102(Judea and Samaria), 5762 -2002.
Orderregarding Land Seizureno. Tl41102 (Judea and Samaria),5762 - 2002.
Order regarding Land Seizureno. Tl43102 (Judea and Samaria),5762 - 2002.
Order regarding Land Seizureno. Tl46102 (Judea and Samaria), 5762 - 2002.
Order regarding Land Seizureno. T/7/03 (Judea and Samaria),5763 - 2002.
Order regarding Land Seizureno. Tl21103 (Judea and Samaria),5763 - 2002.
Order regarding Land Seizureno. Tl25103 (Judea and Samaria),5763 - 2003.
Orderregarding Land Seizureno. Tl36103 (Judea and Samaria),5763 - 2003.
Order regarding Land Seizureno. Tl57103 (Judea and Samaria), 5763 - 2003. SectionB- Passages
1. Salempassage.
2. KhirbetA-Taybe - north passage.
3. KhirbetA-Taybe - west passage.
4. 'Aninpassage.
5. Hinanit east passage.
6. Hinanit south-east passage.
7. Al 'Araqa passage.
8. Khirbeat A Tura passage.
9. Raihan Checkpoint.
10. Barta'a southpassage.
11. BakaAl Sharkiyanorth passage.
12. Baka Al Sharkiya southpassage.
13. Zeita southpassage.
14. 'Atil westpassage.
15. Dir Al 'Azzun west passage.
16. Shweikhanorth-east passage.
17. Shweikhanorth passage.
18. Tulkarem southpassage.
19. Far'un westpassage.
20. Shufacheckpoint.
21. KhirbetJubara east passage.
22. Sal'it south passage.
23. Falamyawest passage.
24. Falamya southpassage.
25. Jayyus west passage.
26. Jayyus south passage.
27. Tzufin southpassage.
28. Qalqiliyanorth-eastpassage.
29. Qalqiliyasouth-west passage.
30. Qalqiliya south passage.
31. Qalqiliyacheckpoint (109).
32. Nabi Elias south passage.
33. Alfey Menashe east passage.
34. KhirbetA-Ras A-Tira east passage.
35. Wadi Rasha west passage.
36. Khirbet Ras 'Atiya eastpassage.
37. Habla north-east passage.
38. Habla north passage.
39. Khirbet Ras 'Atiya southpassage.
40. KhirbetAbu Salemannorth passage.
41. Khirbet Abu Salman southpassage.
42. Azzun- 'Atma north-westpassage.
43. Azzun-'Atma south-westpassage.
44. Azzun- 'Atma northpassage.
45. Beit Amin southpassage.
46. Mas'ha north passage.
47. Mas-hawest passage.Date: 6 Tishrey, 5774
MosheKaplinsky,
General Commander of IDFForces
Judea and SamariaAreaPARTE
IDF MILITARYORDER: "GENERALPERMITTO ENTER THE
SEAMZONEAND TO STAYIN IT", 2 OCTOBER2003.
Translationby UnitedNations OfJiceof the Coordinationof
HumanitarianAffairs
Israel Defense Force
OrderRegardingSecurityRegulations(Judeaand Samaria)(No. 378),
5730-1970
GeneralPermitto Enter the SeamZone and toStay in it
In the power vested in me as the commander of the IDF forces in the
Judea and Samaria area, and according to article 4(a)(2) of the
Declaration Conceming closing an area no. SI2103(Seam Zone) (Judea
and Samaria), 5764-2003 (here after- "the declaration"), 1hereby order
as follows:
Generalpermit 1. An entry permit to the seamzone, as definedin
to enterthe seam the declaration, and to stay in it is hereby given
zone andstay in it to everyperson belonging to the type of persons
detailed in the appendixofthis permit, according
to the conditions specifiedin the appendix.
Conditions 2. a. A person enteringthe seam
zone and stayingin it,
based on this permit, will cany
with him a documenttesti@ing
that he belongs to one ofthe types
of persons detailedin the
appendix; in additionto an ID
card.
b. The head of the civil administration
may change or addto the conditions
specified in section (a),regardinga
specificperson ortypes of persons.
Reservation 3. Despite what is said in article 1,the military
of commandermay order,that this permit will not
Applicability applyto a person or types of persons entering
the seam zone.
Publication 4. a. Copies of this permit will be deposited
for review forthose interested during
working hours at the followingoffices:
1. RegionalDistrictCoordinating
Offices (DCO).
2. Police stations in Judea and Samaria
area. 3. Office of the Legal Adviser for the
Judea and Samariaarea.
4. Officesof the Head ofthe
infrastructure Sectionin the Civil
Administration ofthe Judea and
Samaria area.
d. Copiesof the permit would be hung on the
noticeboards in the Regional D.C.0 offices, as
mentionedin section (a)(l), for a period of3
months fromthe day the notification ofthis
declaration would be publicized.
e. Thehead of the civil administration is
allowed to set additional means of
publication, beyond the detailed in sections
(a) and (b).
Entry into force 5. Thispermitwill enterinto force starting the day
of its signature.
Name 6. Thispermitwill be entitled: "General permitto
enterthe Seam Zone and to stayin it (Judea and
Samaria), 5764-2003". Appendix
Typesof persons Conditions
Whoever is not a resident ofthe Entry to the seam zone and staying
area [WestBank-N.A.], and in it for al1purposes
obtains a valid foreign passport
and a valid permit to stay in Israel
Whoever obtains a valid working Entry to the seam zone and staying
permit in an Israelisettlement in it for the purpose of employment
located within the seam zone, in a settlementmentioned in the
according to the orderregarding working permit, under the
Employment ofWorkersin Certain conditions setin theworkingpermit
Areas (Judea and Samaria) (No.
967), 5742-1982
Whoever obtains a valid exit permit Passing through theseam zone in
fiom the area (WestBank-N.A.) to order to exit the area (WestBank-
Israel N.A.) to Israel
Date: 6 Tishrey, 5774
Moshe Kaplinsky,
General Commanderof IDF Forces
Judea and SamariaAreaPARTF
IDF MILITARY ORDER: "REGULATIONSREGARDINGENTRY
AND STAYPERMITS TO THE SEAM ZONE", 7 OCTOBER 2003
Translation by UnitedNations OfJiceof the Coordination of Humanitarian
Affairs
Israel Defense Force
OrderRegarding SecurityRegulations(Judea and Samaria)(No.378),
5730-1970
RegulationsRegarding Entry and StayPermits to the SeamZone
In the power vested in me asthe Head ofthe Civil Administration and
accordingto articles 4(a)(2) and 7 to the Declaration Concerning
closing an areano. SI2103(SeamZone) (Judea and Samaria), 5764-
2003 (here after- "the declaration"), 1hereby order as follows:
Definitions 1. Inthis order:
"TheSeamZone" - As defined in the declaration
"Thecertifiedauthority" - Heads of the Israeli
civilDistrict CoordinatingOffices.
"Permit7'- A persona1written permit to enter and
stay in the seamzone, issued to a person by the
certifiedauthority.
"TheCommittee" - A committee established by
me in order to examinerequest for permits.
Issuing a 2. a. A permit will be issued by the certified
permit authorityfor one
ofthe purposes detailed in sectionA to the
appendixof these regulations.
b. A permit willbe issued for a period setby
the certified
authority,accordingto procedures yet to be
set.
Request 3. a. A request for a permit for a person
for a permit whose ageturned 12
years oldwill be applied through one of the
forms set in sections B-Mto the appendix,
accordingto the purpose of entry and stay.
b. A person whose age did not turn 12years
old will be allowed to enter and stay inthe
seamzone, when accompaniedby a
person carrying a permit issued according to the above mentioned section(a),forthe
purpose to which the permit was issued,
orby any other way setby me or onmy
behalf.
Examining 4.. a. When a request for a permit is submitted
the Request the certified authoritywill decide one of
the following:
1. Authorizing the request or
denyingit, based on the request.
2. Transferringthe request forreview
of the committee.
b. If the certified authority denied therequest
forpermit
forthe purposes mentioned in articles 1-6
in sectionA to the appendix,the
requestant would be given another
opportunity to bringhis claims before the
committee.
c. In order to considerthe request for a
permit the cornmitteecould conduct every
needed examination,including inviting
the requestant and everyother person
relatedto the request to appear before it,
and giving instructionsregarding
submission of every documentnecessary
for examination of the request.
d. A certified authoritymay, for the duration
of completing its consideration ofthe
request for a permit, issue the requestanta
temporary permit for entry and stay in the
seam zone, for aperiod and onthe
conditions setby it.
Permit 5. a. A certified authoritymay renew the
Renewal permit for a period setby it, accordingto
procedures yet to be set.
b. When the certified authoritydenies a
request forpermit renewal, the permit
owner will have the opportunity to bring
his claimsbefore the committee;sections
(3) and (4)to article 4 of this order will
applyto the committee's action.
Upholding 6. Nothing in these regulations will impairthe
Laws applicabilityof anypermit given to aperson in
the seamzone, not accordingto these regulations.Publication 8. a. Copies of these regulations will be
depositedforreview of al1persons
during regularworking hours at the
followingoffices:
1. Regional DistrictCoordinating
Offices (DCO).
2. Police stations in Judea and Samaria
area.
3. Office ofthe Legal Adviser of the
Judea and Samaria area.
4. Offices of the Head of the
InfrastructureSectionin the Civil
Administration of the Judea and
Samaria area.
b. Copiesof these regulations would be hung on
thenoticeboards in the Regional DCO
offices, as mentioned in section (a)(l), for a
period of 3 months fromthe day the
regulationsenterinto force, or would be
published in any other way setby me.
Entry into force 10. These regulationswill enter into force
from the date of its signature.
Name 11. These regulations will be entitled: "Regulations
Regarding Entry and Stay Permits in the Seam
Zone (Judea and Samaria), 5764- 2003". Appendix
SectionA
Purposes for entry and stay in the Application form
seam zone
1.Business owner in the seam zone As detailedin section B to the
appendix
2. Merchant in the seam zone As detailed in section C to the
appendix
3. Employee in the seam zone As detailedin sectionD to the
appendix
4. Farrner inthe seam zone As detailedin sectionE to the
appendix
5. Teacher in the seam zone As detailed in sectionF to the
appendix
6. Student in the seam zone As detailed in section to the
appendix
7. Palestinian Authority employee As detailed in section to the
appendix
8.Visitor in the seam zone As detailed in section 1to the
appendix
9. International organization As detailedin sectionJ to the
employee appendix
10.Local municipality/Infrastructure As detailed in section to the
Companyemployee appendix
11.Member of medical staff As detailed in section to the
appendix
12.Any otherpurpose As detailed in sectionM to the
appendix SectionB -FormRegardingPermit RequestFor BusinessOwner In The SeamZone
picture
Request Regarding Entry And Stay Permit To The Seam Zone For Business Owner In
The Seam Zone El
Details Of The Requestant (Business Owner In The Seam Zone)
Full name ID nurnber Date ofbirth Addressof residence
Details Of The Business:
Name of business Address ofbusiness Typeof business Date of establishment
License'snumber Issuedate Telephoneno.
Requestto pass through check point:
Reason: 9
Request To Overni~ht In The Seam Zone (Optional)
Name of person of ID no. Address of Date Signatureof the
which at his place overnightstay person of whichat
you stay his place you stay
Reason:
Date Requestantsignature
Attached ToThe Request The Followin~Documents:
J Copy ofthe ID + appendixof : 1.The Requestant.2. The name of person of which athis place you
stay. (optional)
J Copy ofthe business licenseldocumenttestifiing the requestantis a business owner.
J Copyof documentstestifyingthe requestantrights inthe business.
* The copy willbe verified withthe original.
(Interna1 - For Use Of Certified Authority)
1. Commentof head of EconomicsBranch, reference -
2. Decisionof the certified authority:
Entrythroughpassage road: date: 1 1 .Signature: SectionC - ForrnRegarding PermitRequestFor Merchant In The SeamZone
RequestRegarding Entrv And Stav Permit To The Seam Zone For Merchant In
The Seam Zone
Detaiis Of The Requestant (Merchant In The Seam Zone)
Full name ID number Date of birth Address of residence
Detaiis Of The Business:
Type of business Business license Issued by Date of Issuance
Business address Business license Valid fiom Telephoneno.
Request to pass through checkpoint:
Reason: '
Request To Overnight In The Seam Zone (Optional)
Name of person of ID no. Addressof Date Signature of the
which at his place ovemight stay person of which at
you stay his place you stay
Reason:
Date Requestant signature
Attached To The Request The Following Documents:
J Copy of the ID+ appendixof: 1.The Requestant. 2. The name of person of which at his place
you stay (optional)
J Copy of the business licenseldocument testieing the requestant is a business owner.
J Copy of merchant's license.
* The copy willbe verifiedwith the original.
[Interna1 - For Use Of Certified Authoritv)
1
1.Commentof head of EconomicsBranch, reference -
2. Decision of the certifiedauthority:
Entry throughpassage road: date: 1 1 .Signature: SectionD - Form Regarding Permit Request For Employee In The SeamZone
Request Regarding Entry And Stav Permit To The Seam Zone For Employee In
The Seam Zone
Details Of The Requestant (Merchant In The Seam Zone)
Full name ID number Date of birth Address of residence
Details of the Land (For agricultural Employer in the Seam Zone)
Landof Village No. ofPlot No. of Block Type of crops
Business license Valid from
Telephoneno. Remarks
Details of the Emplovee:
Full Name 1ID no. 1Address of residence 1Date of Birth
1
Requestto pass through check poi/AgriculturalGateno.:
Reason: >
Request To Overnight In The Seam Zone (Optional)
Name ofperson of ID no. Address of Date Signatureof the
which at his place overnight stay person of which at
you stay his place youstay
Reason:
Date Requestantsignature
Date Employee signature
Attached ToThe Request The FollowingDocuments:
J Copy ofthe ID + appendixof :1.The Requestant.2. The Employee.3. Thename of person of which
at his place you stay. (optional)
l * The copy willbe verifiedwiththe original.
[Interna1 - For Use Of Certified Authoritv)
1.Commentof head of EconomicsBranch, reference-
2. Decisionofthe certified authority:
Entrythroughpassage road: date: 1 1 .Signature: SectionE - Form RegardingPermitRequest For Farmer InThe Seam Zone
Request Regarding Entrv And Stay Permit To The Seam Zone For Employee In The
Seam Zone
Details Of The Requestant (Merchant In The Seam Zone)
Fullname IDnumber Dateofbirth Address ofresidence
Details of the Land (For agricultural Emplover inthe Seam Zone)
Landof Village 1No. ofPlot 1 No. of Block 1 Type of crops
Request to pass through check poi/AgriculturalGate no.:
Reason: ,
Request To Overnight In The Seam Zone (Optional)
Name ofperson of ID no. Address of Date Signature of the
which athis place ovemightstay personof which at
you stay his place you stay
Date Requestantsignature
Attached To The Request The FollowingDocuments:
J Copy of the ID+ appendixof: 1.The Requestant.2. The Employee.3. Thename ofperson of which at
his place youstay.(optional)
J Documentstesti@ingthe rightsofthe Requestantin the land.
* The copywillbe verifiedwiththe original.
JInternal- For Use Of Certified Authoritv)
1. Commentofhead ofEconomicsBranch, reference-
2. Comment of relevant officer, referen-e
Decisionof the certified authority:
Entrythrough passageroad: date: / 1 .Signature: SectionF - Form RegardingPermitRequestFor Education In The SeamZone
I I
picture
RequestRe~ardingEntrvAnd StavPermit To The SeamZone For Teaching
El
DetailsOf TheRequestant(Headof Education InstitutionIn The Seam Zone)
Full name ID nurnber Job From date
Name of Education Addressof Education TeachingClassof the Teacher
Institution Institution
Agel Grade Major
Details of the Teacher:
1Full Name 1Addressof residence 1ID no. 1Date of Birth 1
TeachingCertificate Authorizedby Issued in From date
no.
Requestto pass through checkpoint 1AgriculturalGateno.:
Reason: 7
RequestTo OvernightIn The SeamZone (Optional)
Name ofperson ID no. Address of Date Signatureof the
of which at his overnight stay person of which at
place youstay his place you stay
Reason:
Date Requestant signature
Date Teacher signature
AttachedTo The RequestTheFollowingDocuments:
J Copy of the ID+ appendixof: 1.TheRequestant.2. Theteacher.3. The name of person of which athis
place you stay.(optional)
J Copy of teaching licenseofthe teacher.
*The copywillbe verifiedwith theoriginal.
JInternal- For Use Of CertifiedAuthority)
1.Commentofhead of EducationBranch,reference -
2. Decision ofthe certifiedauthority:
Entrythroughpassage road: date: 1 1 . Signature: Section G- Fom Regarding PermitRequest For Student In The Seam Zone
Request Regarding Entrv And Stav Permit To The Seam Zone For The Purpose Of
Study
Details Of The Requestant (Head of Education Institution In The Seam Zone)
u
Full name 1ID number 1Job 1From date
Name ofEducation Teaching Class ofthe Teacher
Address of Education
Institution Institution
Age/ Grade Major
Details of the Student (who turned 12vears old):
FullName ID no. (if no ID Date ofBirth Address ofresidence
name and ID no. of
father)
Request to pass throughcheckpointAgriculturalGate no.:
Reason: 9
Request To Overnight In The Seam Zone (Optional)
Name ofperson of ID no. Address of Date Signatureof the
which at his place ovemight stay person of which at
you stay his place you stay
Reason:
Date Requestantsignature
Date Student signature
Attached To The Request The FollowingDocuments:
J Copy ofthe ID+ appendixof :1.The Requestant.2. The student(ifno ID-ID of father). 3. Thename
ofperson ofwhich at hisplace you stay. (optional)
* The copy willbe verifiedwiththe original.
JInternal - For Use Of Certified Authoritv)
1.Commentofhead of EducationBranch, reference-
2. Decision ofthe certifiedauthority:
Entry throughpassageroad: date: / / .Signature: SectionH - Form Regarding Permit Request For Palestinian Authority Employee
RequestRe~ardingEntrvAnd StayPermit To The Seam Zone ForPalestinianAuthoritv
Emplovee
DetailsOf TheRequestant(PalestinianAuthorityEmplovee In The SeamZone)
Full name
ID number Date of birth Address of residence
Job Servesin thevillageof No. of work certificate
Requestto pass through check point:
Reason: 3
RequestTo OvernightIn The SeamZone (Optional)
- Signatureof the
Name ofperson of ID no. Address of Date
which at his place ovemight stay person of which at
you stay his place you stay
Reason:
Date Requestantsignature
AttachedTo The RequestThe FollowingDocuments:
J Copy ofthe ID + appendix of :1.The Requestant. 2. The name of person ofwhich at his place you stay.
(optional)
J Copy ofthe Palestinian AuthorityEmployeeCertificate.
* The copywill beverified withthe original.
[Interna1 - For Use Of CertifiedAuthoritv)
1. Comment of relevant officer, reference-
2. Decision ofthe certifiedauthority:
Entrythrough passage road: date: 1 1 . Signature: Section1 - Form Regarding Permit Request For Visiting The SeamZone
Request Regarding Entrv And Stav Permit To The Seam Zone For Visitor In The Seam
Zone
Detaiis Of The Requestant (Inviter - Permanent Resident In The Seam Zone)
Full name 1 ID number Addressof residence 1Relation tothe visitor
Details of the Visitor:
Full name 1ID no. 1 Address ofresidence 1Date of Birth
Length of visit Reason of the visit
Fromdate- 1Until -
- -
Details of Accompanied Persons (under the age of 12)
Full name ID no. Date of Birth Relationto therequestant
Requestto pass through check point:
Reason: y
Request To Overni~ht In The Seam Zone (Optional)
-
Name ofperson of ID no. Address of Date Signatureof the
which at his place overnightstay person of which at
you stay his place you stay
Reason:
Date Requestant signature
Date Visitor signature
Attached ToThe Request The FollowingDocuments:
J Copy ofthe ID + appendix of:1.The Requestant.2. The visitor.3. The name ofperson of which athis
place you stay. (optional)
J DocumentstestiQing the rights of the Requestantin the land.
*The copy willbe verifiedwith the original.
(Interna1 - For Use Of Certified Authority)
Decisionof the certifiedauthority:
Allowedto visit in fromdate: 1 1 until 1 1 .
Entry throughpassage road: date: 1 1 .Signature: Section J- Fonn Regarding Permit Request For Employeeof International Ornanization
RequestRegardingEntryAnd StayPermit To The SeamZone For Employee of picture
InternationalOrganization
Details Of The Requestant(Employeeof International Organization) El
Full name ID number Date of Birth Address of residence
Name of Organization Works fromdate No. of work Certificate Job Positioned in
village1
district
Requestto pass through check point:
Reason: y
RequestTo OvernightIn The SeamZone (Optional)
Name ofperson of ID no. Addressof Date Signatureof the
which at his place overnight stay person of which at
you stay his place you stay
Reason:
Date Requestantsignature
Date Visitor signature
AttachedTo TheRequestThe FollowinpDocuments:
J Copy of the ID+ appendix of :1.The Requestant.2. The name ofperson of which at his place you stay.
(optional)
J Copy ofwork certificatein an internationalorganization.
*The copy will be verified withthe original.
JInternal- For Use Of CertifiedAuthoritv)
1. Commentofhead of International Organizations, reference: 7
2. Decision ofthe certified authority:
Entry through passage road: date: 1 1 .Signature: SectionK - Form RegardingPermitRequest For Employee of LocalMunicipality
IConstmction Company
Request RegardingEntryAnd StayPermit To The Seam ZoneFor Employeeof Local
Municipalitv/InfrustructureCompany
Details OfThe Requestant(Employeeof Local Municipalitv/InfrustructureCompany)
Full name ID number Date of Birth Address ofresidence
Job Positionedin the No. of work certificate
village
Requestto pass through check point:
Reason: 3
Request To OvernightIn TheSeamZone (Optional)
Name ofperson of ID no. Address of Date Signatureof the
person of which at
whichat his place overnight stay
you stay his place you stay
Reason:
Date Requestant signature
Date Visitor signature
AttachedTo The RequestTheFollowingDocuments:
J Copy of theID + appendixof :1.The Requestant.2. The name of person ofwhich athis place you stay.
(optional)
J Copy ofwork certificateof Employeeoflocalmunicipality/InfrastructureCompany.
* The copy willbe verified with the original.
JInternal- ForUse Of CertifiedAuthoritv)
1. Commentby the relevant officer, reference-
2. Decisionofthe certifiedauthority:
Allowed to visitin from date: 1 1 until 1 1 .
Entrythrough passageroad: date: 1 1 .Signature: SectionL - Form Regarding Permit Request For Member ofMedical Staff
RequestRegardingEntrvAnd StavPermit To The Seam Zone For Member of
MedicalStaff
DetailsOf TheRequestant:
Fullname Date of Birth Address ofresidence
ID number
MedicalInstitution Job Positionedin the No. of work certificate
Employer village/district
Authorizationof Head of MedicalInstitutionEmplover
Full name ID no. Address of Institution Date Signature
Requestto pass through check point:
Reason: 3
RequestTo OvernightIn The SeamZone (Optional)
Name ofperson ID no. Address of Date Signature of the
of which at his ovemight stay person of which at
place you stay his placeyou stay
Reason:
Date Requestant signature
Date Visitor signature
AttachedTo The Request TheFollowingDocuments:
J Copy of theID + appendixof :1.The Requestant.2. The name of person ofwhich at hisplace
you stay. (optional)
J Copy ofwork certificateofEmployee oflocalmunicipality/InfrastructureCompany.
* The copy willbe verifiedwith the original.
JInternal- ForUse Of CertifiedAuthoritv)
1. Commentby the Head of Education Branch, reference-
2. Decision ofthe certified authority:
Entry through passage road: date: 1 / .Signature: SectionM - Form regarding Exceptionalpermitto the SeamZone
picture
Request RegardingExceptionalpermitforEntryAnd Stayin the SeamZone
Details OfTheRequestant: El
Full name ID number Date of Birth Address of residence
Destiny of entry (villageldistrict) Purpose of entry
Requestto pass through checkpoint:
Reason: 9
RequestToOvernightIn TheSeamZone (Optional)
Name of person ID no. Address of Date Signature of the
of which at his overnight stay person of which
place you stay at his place you
stay
-
Reason:
Date Requestant signature
AttachedTo The Request TheFollowin~Documents:
J Copy of the ID+ appendix of: 1.The Requestant. 2. The name of person of which at his place
you stay (optional)
* The copywill be verified with the original.
(Interna1 -For Use Of Certified Authority)
Decision of the certified authority:
Entry through passage road: date: 1 1 .Signature:Date: 11Tishrey,5774
71O12003
Ilan Paz,
Major General
Head ofthe Civil Administration
Judea and SamariaArea PARTG
IDFMILITARY ORDER: "REGULATIONSREGARDING PERMITFOR
PERMANENTRESIDENTSIN THE SEAMZONE", 7 OCTOBER 2003
Translationby UnitedNations Officeof the CoordinationofHumanitarian Affairs
Israel Defense Force
OrderRegardingSecurityRegulations(Judeaand Samaria)(No. 378), 5730-
1970
RegulationsRegardingPermitto PermanentResidentin the SeamZone
In the power vested in me as the Head ofthe CivilAdministrationand
accordingto article4(a)(2) and 7 to the DeclarationConcerning
closingan area no. SI2103(SeamZone) (Judea and Samaria), 5764-
2003 (here after- "the declaration"), 1hereby orderas follows:
Definitions 1. In this order:
"TheSeamZone" - As definedin the declaration
"TheCertifiedAuthority" - Heads of the Israeli
civil District CoordinatingOffices.
"PermanentResidentPermitv-A written permit,
issued by the certifiedauthority, testibing that the
permanent place of residenceof its carrieris within
the seam zone.
"TheCommittee" - A cornmitteeestablishedby
me in order to examinerequest for permanent
resident permits.
Issuinga 2. a. A permanent residentpermit will be issued
Permanent by the certifiedauthority:
Resident 1. To a person legally stayingin the area
Permit [WestBank] whose age turned 12years
old on the datethe declaration entered
into force, whenproven to the
satisfactionofthe certifiedauthority
that sfheis apermanent resident in the
seamzone on the date the declaration
enteredinto force, and on the condition
slhefiled a request for apermitwithin a
year from theentry into force of these
regulations orbefore reaching the age
of 16years old, accordingto the latest
date ofthe two.
2. Toaperson legallystaying in the area
[WestBank] who obtainsa new resident permit in the seam zone, as
stated in article 6 of these regulations,
when proven to the satisfactionof the
certified authority that s/he lived
permanentlyin the seamzone for a
period of more than 2 years.
3. To a person legally staying in the area
[West Bank], whose age turned 12
years old afterthe date the declaration
entered into force, and who was
registered as accompaniedperson in the
permanent resident permit issuedbased
on sections(1) and (2) as long as s/he
submitteda request forpermitbefore
s/he turned the age of 16years old.
c. A permanent resident permit will be issued
for aperiod set by the certified authority,
according to procedures yet to be set.
Request 3. A request for a permanent resident permit will be
for permanent submittedon a form "Request for Permanent
ResidentPermit ResidentPermit in the SeamZone",
accordingto SectionA ofthe appendix.
Examining 4. a. When arequestfor a permanent resident
the Request permit is submittedthe certifiedauthority
Will decide one ofthe following:
1. Authorizing issuance of the permanent
resident permit, based on the request.
2. Transferring the request for review of
the committee.
1. In order to consider the request for a
permanent resident permit the
committee could conduct every needed
examination, including invitingthe
requestant and every otherperson
relatedto the request to appearbefore
it, and giving instructions regarding
submission of every document
necessary for examination ofthe
request.
2. The committeewill not deny arequest
for a permanent resident permit unless
the requestant was given an opportunity
to bring hislher claims before it.
3. After a decisionwas made by the
committee to authorizea request for
permanent resident permit the certified
authority will issue a permanent
resident permit to the requestant. A certified authority may, for the
duration of completing its consideration
ofthe request for apermit, issue the
requestant a temporary permit for entry
and stay in the seam zone, for a period
and onthe conditions setby it.
Permit 5. a. A certifiedauthoritywill renew a
Renewal permanentresidentto a person, after
proven to its satisfaction that she is a
permanent residentofthe seam zone on the
day the permit is renewed.
If not proven to the satisfaction of the
certified authority that the requestant is a
permanent resident in the seam zone on
the daythepermit is renewed, it should
pass on therequestto the examinationof
the'committee;sections(2) and (3)to
article4 ofthis order will applyto the
committee's action,under the necessary
changes.
New Resident 6. a. A person, who is not a permanent resident
In the Seam in the seamzone, wishingto be a resident
Zone a in the seam zone,will submitrequest for
a new resident permit in the seam zone to
the certified authority,on a formtitled:
"Request For A New Permanent Resident
In The SeamZone", accordingto section B
ofthe appendix.
The request willbe examinedby the
committee accordingto article 4(2).
After the committee authorizes the request,
the certified authoritywill issue a new
resident permit in the seam zone for a
period of a year; article 5 will apply to a
request to renew a new resident permit,
under the necessary changes.
A new resident livingpermanently at least
2 years in the seam zone may submit a
request to receive a permanent resident
permit, according to articles 3 and 4, under
the necessary changes.
A certified authoritymay, for the duration
of completingits consideration of the
request for a permit, issuethe requestant a
temporarypermit for entry and stay in the
seamzone, for a period and on the
conditions setby it.Publication 7. a. Copies of these regulationswill be
deposited for review of al1persons during
regular woriung hours at the following
offices:
1. Regional DistrictCoordinating
Offices (DCO).
Police stationsin Judea and Samaria
2.
area.
3. Office of the Legal Adviser of the
Judea and Samaria area.
4. Officesof the Head of the
1nfi.astructux-eectionin the Civil
Administration ofthe Judea and
Samaria area.
b. Copiesof these regulations would be hung on
the notice boards inthe Regional DCO
offices,asmentionedin section (a)(l), for a
period of 3 months fromthe day the
regulationsenter into force, or would be
published in any other way setby me.
Entry into force 8. These regulations will enter into force fromthe
date of its signature.
Name 9. These regulations will be entitled: "Regulations
Regarding Permit to Permanent Resident in the
SeamZone (Judeaand Samaria), 5764- 2003". Appendix
SectionA - FormRegardingRequest for PermanentResidentPermit In The SeamZone
RequestRegardingPermanentResident Permitin The SeamZone
Details Of TheRequestant
Full name 1 IDnumber((if no ID - name and ID no. of father)
1 ID number 1Date of Issuance 1Issued in Distrtict
Request to pass through checkpointlagricultural gate:
Reason: '
Date Requestantsignature
AttachedTo TheRequestTheFollowin~Documents:
J Copy of the ID +appendix of : 1.The Requestant (whenrequestant has ID). 2. Requestant's
parents (whenrequestant does not haveID)
J Copy of documentstesti6ing the requestant is a permanent residentin the seamzone.
* The copywill be verified with the original.
JInternal- ForUse Of CertifiedAuthoritv)
3. Date when request was received in the DCO: 1 1 .
4. Commentof head of Population Registry in the CivilAdministration- reference
5. Comment of the relevant officer- ,reference:
6. Decision of the cornmittee: (includecopy).
7. Decision of the certified authority:
date:--- 1 1 .Signature:
Requestant whichis not registeredon the da~the requestwas submitted, as a seamzone
residentin the IsraeliPopulationRegistry
Attached to the Request (afier changingthe address oftherequestantto the seam zone in the ID)
J A copy of the updated ID of the requestantltherequestant's parents.
JInternal- for use of the certifiedauthoritv)
Authorization of the head of the PopulationRegistry in the Civil Administration regarding change
of addressin the Israeli Population Registry, reference- SectionB - Form Reaardina Request for New Resident Permit In The SeamZone
RequestRegardingNew ResidentPermitin The SeamZone
DetailsOf The Requestant
1ID nurnber
Fullname 1ID number 1Date ofIssuance 1 Issued in District
Address ofResidence
Addressregisteredin the From date In fact From date
ID
Detailsof the Relative(PermanentResidentin the Seam Zone)
Full name ID
ID number Date of Issuance Issued in District
Address of Residence
Addressregistered in the From date In fact From date
ID
Requestto pass throughcheckpoint/agriculturalgate:
Reason: y
Commitment
Wehereby Committhat the requestant will movehisher permanent placeof residenceto the seamzone,
to the address ,within 6 months fromthe day the permit is received.
Date Requestantsignature
Date Relativesignature
AttachedTo The Request TheFollowingDocuments:
J Copy ofthe ID + appendixof :1.The Requestant.2. The relative.
J Copy of marriage documents /documentstestifying family relations.
* The copy will be verified withthe original.
JInternal- For Use Of CertifiedAuthority)
1. Commentof head of PopulationRegistryin the Civil Administration, reference -
2. ERASED ON ORIGINALFORM
3. Comment ofthe Israeli police, reference:
4. Issuance of temporary permitby the certified authorit- from date: / / .until:
5. Passage through check point: . signature:
6. Report tothe ?Civil Administrationon date: / / .Reportingbody:Date: 11Tishrey, 5774
Ilan Paz,
Major General
Head ofthe Civil Administration
Judea and SamariaAreaAnnex 3 APPENDIX 3 SUMMARY OF RECENT ISRAELI ACTIVITYIN
CONSTRUCTIONOF THEWALL
The foilowing is a survey of Israeli activity in construction of the Wall from 8
December 2003, the date on which the UN General Assembly adopted its request
for an Advisory Opinion, until 19 January 2004. This survey is compiled from
Daily Situation Reports of the Palestinian Monitoring Group, NegotiationsAffairs
Department, Palestine Liberation Organization. The reporting cycle of the Daily
SituationReports is 08:OOfrom the previous day to 08:OOof thedate of the report.
GENERAL
10December Allocation of Funds:380 million NIS were approvedby the Parliament's
DefenseBudgetCommitteefor infrastructurework, constructionand
procurementforthe Wall and other surveillanceequipment.
18December Acceleration of Wall Construction: At the HerziliyaConference,Israeli
PrimeMinisterAriel Sharon announced a "DisengagementPlan" and
accelerationof construction of the Wall.
JERUSALEM
8 December Wall Construction: Israeli authoritiescontinueconstructionof the Wall in
Abu Dis,Al Sawahira,Al Eizariya,Al Tur andAl Shayyah.
9 December Wail Construction: Israeli authoritiescontinueconstructionof the Wall in
Abu Dis,Al Sawahira,Al Eizariya,Al Tur and Al Shayyah.
10December Wail Construction: Israeli authoritiescontinueconstructionof the Wall in
Abu Dis,Al Sawahira,Al Eizariya,Al Tur and Al Shayyah.
11December Wall Construction:: Israeli authoritiescontinueconstructionof the Wall in
Abu Dis,Al Sawahira,Al Eizariya,Al Tur and Al Shayyah.
12December Wall Construction: Israeli authoritiescontinueconstruction of the Wall in
Abu Dis, Al Sawahira,Al Eizariya, Al Tur and Al Shayyah.
14December Wall Construction: Israeli authoritiescontinueconstructionof the Wall in
Abu Dis, Al Sawahira,Al Eizariya, Al Tur andAl Shayyah.
15December Wall Construction: Israeli authoritiescontinueconstruction of the Wall in
Abu Dis,Al Sawahira,Al Eizariya, Al Tur andAl Shayyah.
16December Wall Construction: Israeli authoritiescontinueconstruction of the Wall in
Abu Dis,Al Sawahira,Al Eizariya,Al Tur and Al Shayyah.
17December Wall Construction: (i) Israeli authorities continueconstructionof the Wall
in Abu Dis, Al Sawahira,Al Tur and Al Shayyah.
(ii)Israeliauthoritieshalted constrofthe Wall inthe AlAdyiraharea
(nearDeirFaji)followingthe discoveryofarcheologicalremains.
(iii)Israeliauthoritieshave completed constructionof 1sectionof the Wall
in Al 'Eizariyaneighbourhood.18December WallConstruction: (i) Israeli authoritiescontinue construction ofthe Wall
inAbu Dis, Al Sawahira, Al Tur and Al Shayyah.
(ii)Israeliauthorities resumed constructionofthe Wall inthe Al Adyarah
area (near Deir Faji).
19December LandConfiscation:Israeliauthoritiesissuedconfiscation orders for 8,000
dunums(2000 acres)fromBeit 'han, an estimated 213of the village lands.
21 December Wall Construction:(i) Israeliauthoritiescontinue construction ofthe Wall
inAbu Dis, Al Sawahira,Al Tur and Al Shayyah.
(ii)Israeli authorities resumed constructionofthe Wall in the Al Adyarah
area (near Deir Fa-ji).
Land confiscation: (i) Israeli authorities issued land confiscation ordersto
several residents of Beit Surik,BeitIksa and Al Qubeiba.
(ii) Several residentsof the villages of Liqya, Beit Anan, Qatanna and
Biddureceivedland confiscation orders and 20 house demolition orders for
the construction of the Wall.
22 December Wall Construction:(i) Israeliauthoritiescontinueconstructionofthe Wall
in Abu Dis, Al Sawahira,andAl Eizariya.
(ii) Israeli authorities deliveredverbalnotices of eviction and demolitionto
residents of the area south east of 'hata village. 20 sheeppens will be
demolished in preparation for constructionof the Wall.
(iii)Israeli authoities sent heavy machinery and equipment (including
bulldozers and trucks)to the area between Ma'ale Adummim and Az
Za'ayyem villageinpreparation for constructionofthe Wall.
23 December Wall Construction:Israeliauthoritiescontinue construction ofthe Wall in
Abu Dis, Al Sawahira, and Al Eizariya.
SettlementActivitv:TheIsraeli army has begun enclosingMa'ale
Adummim settlementwith barbed wire.
24 December Wall Construction:Israeliauthoritiescontinueconstruction of the Wall in
Abu Dis, Al Sawahira, and Al Eizariya.
25 December Wall Construction:Israeliauthoritiescontinue construction of the Wall in
Al Shayyah,Abu Dis, Al Sawahira,and Al Eizariya.
26December Wall Construction:Israeliauthoritiescontinue construction of the Wall in
Al Tur,Al Shayyah,Abu Dis, Al Sawahira,and Al Eizariya.
27 December Wall Construction:Construction ofthe Wall in Al Tur, Al Shayyah,Abu
Dis, Al Sawahira, and Al Eizariya was suspendedfor the weekend.
29December Wall Construction:Construction of the Wall continues in Al Shayyah,
Abu Dis. andAl Sawahira.
30 December Wall Construction:Construction of the Wall continues in Al Shayyah,
Abu Dis, and Al Sawahira.
31 December Wall Construction:Constructionofthe Wall continues in Al Shayyah,
Abu Dis, and Al Sawahira.
1January Wall Construction:Construction of the Wall continuesin Al Shayyah,
Abu Dis. and Al Sawahira.
2 January Wall Construction:Construction of the Wall continues in Al Shayyah,
Abu Dis, and Al Sawahira.
3 January Wall Construction:Construction of the Wall was suspendedforthe
weekend inAl Shayyah,Abu Dis, and Al Sawahira.
4 January Wall Construction:Construction of the Wallwas resumed in Al Shayyah,
Abu Dis, Al Eizariya andAl Sawahira. 5January Wall Construction: (i) Constructionof the Wall continues in Al Shayyah,
Abu Dis, Al Eizariyaand Al Sawahira.
(ii) Constructionof the Wall in the Al Adyarah area(nearFaji Monastery)
has been completed.
Land Confiscation:Palestinianresidents of Beit Iksa, Biddu and Qibya
received land confiscationorders.
6 January Wall Construction:Constructionof the Wall continuesin Al Shayyah,
Abu Dis, Al Eizariya and Al Sawahira.
Land Confiscation:Palestinianresidentsof Beit Surik and Beit 'Anan
received land confiscationordersfor 2,500 dunums (625 acres) and 400
dunums (100 acres),respectively.
7January Wall Construction:Constructionof the Wall continuesin Al Shayyah,
Abu Dis, Al Eizariyaand Al Sawahira.
8January Wall Construction:Constructionof the Wall continuesin Al Shayyah,
Abu Dis, Al Eizariya andAl Sawahira.
9 January Wall Construction:Constructionof the Wall continuesin Al Shayyah,
Abu Dis, Al EizariyaandAl Sawahira.
10January Wall Construction:Constructionof the Wall in Al Shayyah, Abu Dis, Al
Eizariyaand Al Sawahirawas suspendedforthe weekend.
11January Wall Construction:Constructionof the Wall continues in Abu Dis, Al
Eizariyaand Al Sawahira.
Wall Construction:Constructionof the Wall continuesin Abu Dis, Al
12January
Eizariyaand Al Sawahira.
(ii)The Israeli army closedthe area adjacent to the Wall in Ras Al Amud,
DahiyatAl Eizariyaand Abu Dis for 15days in order to make adjustments
on sections of the Wall.
13January Wall Construction:Constructionof the Wall continuesin Abu Dis, Al
EizariyaandAl Sawahira.
14January Wall Construction:Constructionof the Wall continuesin Abu Dis, Al
Eizariyaand Al Sawahira.
15January Wall Construction:Constructionofthe Wall continuesin Al Eizariya and
Al Sawahira andhas been suspendedin Abu Dis.
LandConfiscation:The Israeli authoritiesissued confiscationorders for
107dunums (26.75 acres) ofland from Shu'fatrefugee camp and the town
- -- -- --Anata for constructionof the Wall.
16January Wall Construction:Constructionofthe Wall continuesin Al Eizariya and
Al Sawahira.
17January Wall Construction:Constructionof the Wall in Al Eizariya and Al
Sawahirawas suspendedfor the weekend.
18January Wall Construction:Constructionof the Wall in Al Eizariya, Abu Dis and
Al Sawahirawas resumed.
19January Wall Construction:Constructionof the Wall continues in Al Eizariya, Abu
Dis and Al Sawahira. RAMALLAH & EL BIREH
10December
Salih,isolatingthe area of BaniZeid (whichincludesthe towns of Beit
1Rima, Deir ~hassana, Kafr 'Ein,An~abi Salih and Qarawat Bani Zeid)
l------ from the city of Ramallah and other villages andtowns.
11 December Closure:For the 4thconsecutive day,the Israeli army continuesto closethe
iron gateAnfNabi Salih,isolating the area of Bani Zeid (whichincludes
thetowns of Beit Rima, Deir Ghassana,KAnrNabi Salih and
r Qarawat Bani Zeid) from the city ofRamallahand other villages and towns.
WalYSettlementLand Levelling:(i) Israeliauthorities continue to level
land in the villages of Rantis, Qibya and Budrus for construction of the
1gy:iraeli authoritiesbegan levelling land near the village of Shuqbain
preparationforbuildinga by-pass road leadingto the settlement of
15 December Wall Construction:(i) Israelibulldozerscontinueto level land belonging
to the villages of Rantis, Shuqbaand Qibya. Land levelling activitieshave
reachedthe entrance ofthevillage of Budrus,where trees have been marked
(ii)The Israeli Land Departmentplaced signswarning against farmers in
Al-Midyavillage from entering and working on their agricultural lands, as
they arebeing prepared for leveling.
16December Wall House Demolitions:At 18:35,the Israeli army,including3jeeps,
enteredthe village of Beit Liqya, west of Ramallah, and notified house
ownerslocated south ofthe village to vacatetheir houses thenext day, as
they will be demolished afor the construction of the Wall.
Wall Land Confiscation:Israeli officiais issued confiscation orders with
maps to the Ramallah department ofthe CivilAffairs Ministry. The orders
confiscatethe lands from Beit Sirato Beit Nuba for the constructionofthe
Wall.
117December Closure:The Israeli army closed the iroAnNabi Salih village,
isolatingthe northern and north-western villages from the city of Ramallah.
Land Confiscation:The Israeli army raidedthe village of Beit Liqya and
posted orders announcingthe confiscatidunums(525 acres)of
land for construction of the Wall.
118December 1the northern and north-westernvillages frornthe citv of Ramallah.g
119December 1Closure:The iron gate near An Nabi Salihvillageremains clo1ed, isolating
thenorthern and north-westernvillages fromthe city of Ramallah.
20 December Closure:The iron gate AnNabi Salihvillageremains closed, isolating
the northern and north-westernvillages from the city of Ramallah.
21 December Closure:The iron gate AnNabi Salihvillageremains completely
closed, evento ambulances, isolating thenorth-westernvillages from the
city of Ramallah.22 December Closure: The iron gatenear AnNabi Salih villageremains completely
closed, isolatingthe north-western villages from the city of Ramallah.
SettlementActivities: (i) For the past 3 days,Israelisettlers have placed
caravansatthe ShevutRahel outpost and occupied and enclosed 1750m2of
land adjacent to the settlementwith barbed wire.
(ii) Israeli settlersbegan construction of a road connectingShillosettlement
with ShevutRahel settlementand erected electricitypoles on the side of the
road, cuttingoff the northern districts ofthe West Bank fromthe central
districts.
23 December Closure:The iron gatenear An Nabi Salih villageremains completely
closed,isolatingthe north-western villages fromthe city of Ramallah.
24 December SettlementActivitv: The Israeli army enclosed landbelonging to the
village of Deir Nidham with barbed wire forthe expansion of Hallamish
settlement.
25 December Closure:(i) The iron gate near An Nabi Salihvillageremains completely
closed,isolatingnorth-western villages fiom the city of Ramallah.
(ii) The Israeli army declared Bani Zeid villagea closed military area.
26 December Destructionof Propertv:At 10:50,the Israeli army destroyed 4 live stock
farmsbelonging to a civilian from the town of Silwad, claiming that the
farms were too close to the settlement of Ofra.
30 December SettlementActivity: The Israeli authorities continueto fencethe
parameters ofthe settlementof Hallamish. Thefence cuts into land
belongingto residents of the neighbouring village of Deir Nidham.
31 December Wall Construction:The Israeli army declared the area betweenNi'lin and
Budrus a closed military zone, imposed curfew over villages near the
village of Raba, and levelled land anduprooted trees in the area in
preparation for construction ofthe western portion ofthe Wall.
SettlementActivity: TheIsraeli authorities continueto fencethe
parameters ofthe settlementof Hallamish. The fencecuts into land
belonging to residents ofthe neighbouring village of Deir Nidham.
1January Wall Construction:The area locatedbetweenNi'lin and Budms remains a
closedmilitary zone. TheIsraeli army continues to impose curfew over
villages in the area and Israeli bulldozers continue to uproot olivetrees for
constructionofthe Wall.
SettlementActivity:The Israeli authorities continueto fencethe
parameters of the settlement of Hallamish. The fencecuts into land
belongingto residents ofthe neighbouringvillageof Deir Nidham.
2 January Wall Construction:The area locatedbetweenNi'lin and Budms remains a
closedmilitary zone. The Israeli army continues to impose curfew over
villages inthe area and Israeli bulldozers continueto uproot olive trees for
constructionof the Wall.
SettlementActivitv:TheIsraeli authorities continueto fence the
parametersof the settlement of Hallamish. The fencecuts into land
belongingto residents of the neighbouringvillage of Deir Nidham.
3 January Wall Construction:Construction activitiesin the area of Budrus were
suspendedforthe weekend.
5 January LandConfiscation:Palestinian residents ofthe villages of Beit Liqya, Beit
Ur and Al Tira received land confiscation ordersfor construction of the
Wall.8 January Wall Construction: Construction of the westernportion of the Wall
continues in the areas of BuclrusandRantis.
Land Confiscation:The Israeli authoritiesconfiscated 1,500dunums (375
acres)of land fi-omBetunia, south of Ramallah,for constructionof the
Wall.
9 January Wall Construction:Construction ofthe western portion ofthe Wall
continues in Budrus and Rantis.
10January Wall Construction:Construction of the western portion ofthe Wall in
Budrus and Rantis was suspendedforthe weekend.
11January Wall Construction:Construction of the westernportion ofthe Wall
continues in Budrus and Rantis.
12January Wall Construction:Construction of the western portion of theWall
continues in Budrus and Rantis.
13January Wall Construction:Construction of the westernportion ofthe Wall
continues in Budrus and Rantis.
14January Wall Construction:Construction of the western portion of the Wall
continues in Budrus and Rantis.
15January Wall Construction:Constructionofthe western portion ofthe Wall
continues in Budrus and Rantis.
Land Confiscation:TheIsraeli authorities issued confiscationordersfor41
dunums (10.25 acres)of land from Beit Ur al Foqa for constructionof the
Wall. The confiscationof land will:
(i) Deny 400 studentsaccess to their schoolsin nearby towns;
(ii) Isolate 8 families from the village;
(iii) Lead to the demolitionof many poultry and live stock farms andthe
uprooting of trees.
16January Wall Construction:Construction ofthe western portion ofthe Wall
continues in Budrus and Rantis.
17January Wall Construction:Constructionofthe western portion of the Wall in
Budrus and Rantis was suspended for the weekend.
18January Wall Construction:Construction of the western portion of the Wall in
Budrus and Rantis was resumed.
Land Confiscation:TheIsraeli authorities notified villagers of Rantis of
their intentionto confiscate500 dunums (125 acres) of land for construction
of the Wall.
January 19 Wall Construction:Construction of the western portion of the Wall in
Budrus and Rantis continues.
SettlementActivity:Israelisettlers erected anew settlement outpost near
the settlement of Hallamish.JENIN
Passagethroughthe Wall gates in the Jenin district is restrictedto civiliansgranted
special Israelipermits which arebased on no specific criteria. This Israeli closure
continuesto harrnthe educationprocess sinceteachers, amongst others, are not granted
access throughthe gates,particularlyin areaslocated behind the Wall.
20 December Wall Land Levelling:The Israeli army startedlevellingland in the Bardala
area for construction of the easternportions of the Wall.
23December HouseDemolitions: Between 09:OOand 11:00,the Israeli army
demolished 2 houses in Al 'Aqabavillage. The 2 houses were included in
demolition ordersfor atotal of 12 buildings, including houses, a mosque
and day care center, issued on 22 October 2003. Israeli soldiers informed
civiliansin the area that they would return in 5 days to demolish the
remaining 10houses.
26 December Wall Gates:(i) The Israeli army prevented a cargoof wheat and animal
feed frompassing through the Wall gate of Barta'a ash Sharqiya.
(ii) TheIsraeli army prevented femalecivilians fi-omcrossing the Barta'a
ash SharqiyaWall gate to return to their villages between 13:OOand 16:00,
claimingthat there was noIsraelifemalesoldierto search females during
that period of time.
27 December Wall Gates:The village ofBarta'a, located behindthe Wall, is under strict
closure. Doctors, basic food supplies and milk have not been allowed into
the village. Schools are closedbecause teachershave been unable to reach
the village.
28 December Wall Gates: The village of Barta'a, located behind theWall, remains under
strict closure. Doctors, basic food supplies and milk havenot been allowed
into the village. Schools are closedbecause teachers have been unable to
reachthe village.
Land LeveilinglEasternWall Construction: Israeli bulldozers are
levelling land east of the village of Al Mutilla in preparation for
construction of the Wall.
30 December Wall Construction:The Israeli army continues levelling land north of the
village of Bardala inpreparation for construction of the eastern sectionof
the Wall.
31 December Wall Construction:(i) TheIsraeli army continues to level land north of the
village of Bardala inpreparation for construction of the eastern portion of
the Wall.
(ii) TheIsraeli army sealed off pasturelands near the village of Raba,
levelled land and destroyedwater cisterns.
1January Wall Construction:(i) TheIsraeli army continues to level land north of the
village of Bardala inpreparation for construction of the eastern portion of
the Wall.
(ii) The Israeli army continuesto level land and destroy water cisternsnear
the village of Raba.
2 January Wall Construction:(i) TheIsraeli army continues to level land north of the
village of Bardala inpreparation for construction of the easternportion of
the Wall.
(ii) The Israeli army continuesto level landnear the village of Rabafor
construction of the easternportion of the Wall.3January WallConstruction:(i) Israeli activitiesin the villageof Bardala in
preparationfor constructionofthe easternportion of the Wall were
suspendedforthe weekend.
(ii)-Israeliactivitiesnear the village of Raba for constructionof the eastern
portionof the Wall were suspendedforthe weekend. Shepherds were
prohibitedfrom taking their livestockto graze in pasturelandsin the area of
Raba.
4 January WallGates/Detentions:Israeli soldiers atthe gate of Barta'a (located
behindthe Wall) detained over 200 women fi-omthe village,preventing
themfrom returning to their homes between 11:O0and 15:OO.The Israeli
armyassaulted Ghassan Kabha,head ofthe Barta'a village council,and
detainedhim for several hours forprotesting-ag-inst the detention of the
200women. The Israeli army preventedthe civilians fi-omcrossingthe gate
withtheir food supplies,including bread.
9January Wall ConstructionlLandLevelling: (i) The Israeli army levelled
agriculturalland belongingto the village of Bardala for constructionofthe
Wall. Thevillage was surrounded and enclosed by the Israeli army through
the construction ofmilitarywatchtowers and the dispatching ofjeeps and
police dogs in the area.
(ii) The Israeli arrnycontinuesto dig a ditch alongthe JordanRiver to the
village of 'EinAl Beida.The Israeli army destroyed 6 vendor standsin the
process of digging.
11January Wall ConstructionILandLevelling: (i) Israeli authoritiescontinueto level
land north of the village of Bardala, east of the village of 'Ein alBeida and
near the villages of Al Mutilla and Raba on the Nablus mountain range for
construction of the Wall.
(ii) Construction on the Wall has begun on Al Buqe'a plateau east of the
town of Tubas.
(iii) The Israeliauthorities confiscated 5 water containers in the area ofAl
Malih belongingto shepherds herding livestockin the area in preparation
for constructionthe Wall.
12January Wall ConstructionILandLevelling:Israeliauthoritiescontinueto level
land north of the village of Bardala, east of the village of 'Ein al Beida, near
the villages of Al Mutilla and Raba on the Nablus mountain range, and on
Al Buae'a ~lateaueast of Tubas for construction of the Wall.
13January Wall ConstructionLand Levelling:Israeliauthoritiescontinue to level
land north of the village of Bardala, east ofthe village of 'Ein al Beida, near
the villages ofAl Mutilla and Raba on the Nablus mountain range, and on
Al Buqe'aplateau east of Tubas for construction ofthe Wall.
14January Wall ConstructionILandLevelling:Israeliauthoritiescontinue to level
land north of the villageof Bardala, east of the village of 'Ein al Beida, near
the villages ofAl Mutilla and Raba onthe Nablus mountain range, and on
Al Buqe'a plateau eastof Tubas for construction of the Wall.
15January Wall ConstructionLand Levelling:Israeliauthoritiescontinueto level
land north of the village of Bardala, east of the village of 'Ein al Beida, near
the villages ofAl Mutilla and Raba on the Nablus mountain range, and on
Al Buqe'aplateau east of Tubas for constructionof the Wall.16January Wall Construction/LandLevelling:Israeli authorities continue to level
land north of the villageof Bardala, east ofthe villageof 'Ein al Beida,near
the villages of Al Mutilla and Raba on the Nablus mountain range, and on
Al Buqe'a plateau east of Tubas for construction ofthe Wall.
17 January Wall Construction:Land Levelling north of the village of Bardala, east of
thevillage of 'Ein alBeida, near the villages of Al Mutilla andRaba on the
Nablus mountain range, and on Al Buqe'aplateau eastof Tubas for
construction of thewall was suspended for the weekend.
18 January Wall Construction /LandLevelling:Land levelling in the northern
valleys (Bardala, and 'Ein alBeida) and east of Tubas (Al Mutilla, Al
Mughayyir, Raba, and Al Buqei' plateau) continues.
19January Wall Construction /LandLevelling:Land levelling in the northern
valleys (Bardala, and 'Einal Beida) andeast of Tubas(Al Mutilla, Al
Mughayyir, Raba, and Al Buqei' plateau) continues.
JERICHO
10December Destructionof Property: TheIsraeli army destroyed Bedouin tents and
barracks belonging to the family of Abu-Dahouk located in the area ofNabi
Mousa.
24 December Destructionof Propertv:The Israeli armytore downtentsbelonging to a
civilian from the village of Al 'Ojai.
BETHLEHEM
18 December Uprooting:of Trees:The Israeli army uprooted400 olivetrees from the
Wadi Fukin area and issued a verbal warning to Mahmoud Mustafa al-
Horoub that his house would be demolished.
21 December Land Confiscation:Fayez MohammadAl Sa'afen fromHusan village
received land confiscation ordersfor 5 dunums (1.25acres)ofhis land from
the Israeli authorities for the constructionof a power station that will supply
electricity to surroundingIsraeli settlements.
22 December Closure: The Israeli army closed Khirbet el Thebe east of Bethlehem,
prevented civilians from accessingtheir agricultural lands andgrazing areas
and verbally informed residents that these landswill be confiscated.
Land Levelling:At 08:00,the Israeli army, including2 bulldozers,levelled
lands owned bythe Greek Orthodoxchurchnear checkpoint 300, separating
Jerusalem and Bethlehem.
24 December Destructionof Propertv:Israeli bulldozers levelled land located between
the town ofNahhalin and the village of Husan.
4 January Land Levelling:Israelibulldozers levelled dozens ofdunums of
agricultural land located near thetown ofAl Khadr.
14January Wall Construction/Destructionof Propertv:The Israeli army destroyed a
privately owned live stockranch measuring400 dunums (100 acres)for
constructionof the Wall.17January SettlerViolence: Israeli settlers from the settlement of Kfar Ezyon
uprooted approximately 80 olivetrees belongingto Palestinians fi-omland
nearthe seulement.
19January SettlerViolence 1 Destruction of Property: Settlersdestroyedland
belonging to the village of Khirbet Sakariya, destroyed water pipes, cut
down 100grape vines and broke the windows of a public vehicle.
TULKAREM
Passage throughthe Wall gatesin the Tulkaremdistrict is restricted to civiliansgranted
specialIsraeli permits which arebased on no specific criteria. This Israeli closure
continues to harmthe educationprocess since teachers, amongst others, arenot granted
access through the gates,particularlyin areas located behind the Wall.
14December Wall Gates:(i) The entrancesleadingto the agriculturallands ofthe village
of Qaffinhave been closed, preventing farmers, eventhose with permits,
teachers and ambulances from crossing through the gates.
(ii) The Israeli army has prevented teachers from entering the villages of
Nazlat Isa and Al Baqa al Sharqiya (locatedbehind the Wall), disregarding
previousagreements forbasic servicesthat permittheir entrance,
16December Closures:(i) Al-Kafiiyat gate remains closed,closingoff Tulkaremfrom
Qalqilya.
(ii) The Israeli army prevented teachersfrom enteringthe town of Baqa al
Sharqiya.
17December Closure:Al Kafriyat gate remains closed, closing off Tulkarem fi-om
Qalqilya.
18December Closure:Al-Kafiiyat gate remainsclosed, cutting off Tulkarem fi-om
Qalqilya.
Wall Gates:(i) The Israeli army prevented vehicles carrying gas supplies
fi-omentering al Baqa el Sharqiya area locatedbehind the Wall.
(ii) TheIsraeli army closed the gateleading to Jubaravillage locatedbehind
theWall,preventingresidents, employees and students fi-omleavingthe
village.
(iii)Israeliauthorities have not renewed permits grantedto residents of
Qaffinvillage, locatedbehindthe Wall, which expired on 12December
2003.
(iv)Israeliauthorities have not grantedpermits to farmers of the town of
Deir al Ghusunto access agricultural lands.
Land Levelling:TheIsraeli army, including bulldozers, began levellingan
estimated area of 100dunums (25 acres) of land in Far'un village.
19 December Closure:Al-Kafi-iyatgate remains closed, cutting off Tulkarem fi-om
Qalqilya.
25 December Wall Gates:Israeli troops stationed at the Wall gatesprevented farmers
fromreturning to the village of Deir al Ghusun, forcingfarmersto sleep
outside ontheir land. Israeli soldiersprohibited the farmers from lighting
firesto keep warm.
26 December Wall Gates:At 09:30, the Israeli army closedAl Kafriyat gates, isolating
the district of Qalqiliya fi-omTulkarem, and the Enav gate, isolatingthe
district of Tulkarem fromNablus.27December Wall Gates: Al Kafriyat gate remains closed, isolatingthe districtof
Qalqiliya fi-omTulkarem.
28December Wall Gates:(i)Al Kafriyat gate remains closed,isolating the districtof
Qalqiliya fromTulkarem.
(ii) At 08:20, the Israeli army closedthe Enav gate, separatingthe Tulkarem
district fiom Nablus.
30 December Closure:The Israeli army closed the Enav iron gate and Al Kafriyat Wall
gate, isolating Tulkarem fromthe districts of Qalqiliyaand Nablus.
31 December SchoolDisruption:The strict closure imposed by the Israeli army has
prevented studentsfrom reaching their schools and is negatively impacting
the living conditions and educationprocess of communities locatedbehind
the Wall.
1January Closure:The Israeli army closed the Enav iron gate and Al Kafriyat Wall
gate,which separate Tulkarem fromthe districtsof Qalqiliya and Nablus.
Wall Gates: The Israeli armyprevented medical teams fi-omcrossing the
Wall gates andreachingtheir clinicsin the town of Baqa ash Sharqiya and
thevillage ofNazlat Isa, locatedbehindtheWall, and prevented
ambulancesandMinistry of Health vehicles transporting medicine from
enteringthe area.
2 January Closure:The Israeli army continues to closethe Enav iron gate andAl
Kafiiyat Wall gate, separating Tulkarem fromthe districts of Qalqiliya and
Nablus.
3 January Closure:The Israeli army continues to close the Enav iron gate andAl
Kafriyat Wall gate, separating Tulkarem fromthe districts of Qalqiliya and
Nablus.
4January Closure:TheIsraeli army continues to closethe Enav irongate and Al
Kafriyat Wall gate, separating Tulkarem fromthe districts of Qalqiliya and
Nablus.
12January Wall Construction:TheIsraeli army completed levelling approximately
500 dunums (125 acres) of land located between the village of Irtah and
Far'un, southof the city, for construction of the Wall.
15January Wall ConstructionILandLevelling:The Israeli army continues to level
land south of the villageof Far'un for construction of the Wall.
Land Confiscation:Israeli surveyors,working under militaryprotection,
began surveyingand marking land for settlement expansion on land
belonging to the villages ofAl Ras and Kafr Surnear Sal'it settlement.NABLUS
8 December Land Confiscation:The Israeli army confiscated 2 sectionsof land,near
the village of Sad,coveringan area over 2 dunums (0.5 acres), on which the
Israeli army setup a new military position. Theland belongs to residents
from the villages of Jit and Sarra.
22 December Uprooting of Trees: The Israeli army uprooteddozensof trees on the main
road through the town ofHuwwara (south).
24 December HouseDemolitions: (i)At 13:00,the Israelianny demolishedahouseand
storehousesbelongingto25-year-oldKhalidAsidainthevillageof Sebastia.
(ii)TheIsraelianny, includingbulldozers,raidedthetownofDeirSharaf,west
ofNabluscity,demolished2housesbelongingtoNidalBadawi andKheiri
Nofal, and demolished2 storehousesbelongingtoAbdul JabbarKayidand
Awad AbuSafad.
HEBRON
10December Land ConfiscationISettlerViolence: Israeli settlers fromthe settlement of
Haggai took overdozens of dunums of land, preventingtheir original
owners from entering it, and severelybeat a civilian, Musa Al Najjar.
Meanwhile, the Israeli army held 3 other civilians and threatened to arrest
them if they approachedtheir land.
11December Land Levellin~:(i) The Israeli army levelled around 40 dunums (10 acres)
of land betweenthe settlementof Kiryat Arba and Al Kharisina, and
another20 dunums (5 acres) aroundthe settlement of Harisina, forthe
constructionofthe Wall and settlement roads.
(ii) The Israeli army levelledaround 40 dunums (10 acres) of land fromthe
town of Beit Ummar for construction and expansion of settlement roads.
14December Closure: (i)Israeliauthoritiesclosedthentrances to the town of Sa'ir.
(ii) An iron gate was constructedatthe northern part of the city.A military
surveillancetower was also erected.
17December Land Levelling:The Israeliarmy,including bulldozers, levelled 10
dunums (2.5 acres) of land in the village of Yatta for expansion of the settler
road 60. Landlevelling activities continue.
Uprooting of Trees:Israeliauthorities informed the Palestinian Civil
Coordinationof its intention to uproot trees from Tarqumiyavillagenear
Telem settlement.
18December Uprootingof Trees:Israeliauthoritiesissued an order to uproot thousands
of trees in the Tarqumiyaarea due to its proximity to Telem settlement.
23 December Destruction of Propertv: The Israeli army, including 1bulldozer,
demolisheda gas stationbelongingto Ibrahim Al Bratha'i in the town of
Halhul, detained 15civiliansand confiscated their identification cards.
24 December Destruction of Property:The Israeli army levelled 10unums (2.5 acres)
of agriculturalland for constructionof a wall surroundingthe settlement of
Kiryat Arba and a settlementroad.26 December LandLevelling: Israeli bulldozers continueto level agriculturalland
belonging to Palestiniancivilians located between the settlementsof Kiryat
Arba andHarsinafor construction of awall enclosingthe two settlements
and a settlerbypass road.
Uprootingof Trees: TheIsraeli authorities issuedmilitary orders to uproot
hundreds of trees near the junction of IdhnafTarqumiya.
28 December SettlementActivitv: (i) Israelisettlersrebuiltthe settlementoutpost of
Have Ma'on, located south of Ma70nsettlement. Israeliauthorities had
previously announced that the outposthad been evacuated.
(ii)Israelisettlers added 3 caravansto the settlement outpostof Evangel,
south eastof Yatta.
30 December Land Levelling:Israeli bulldozers continue to levelland belongingto
Palestinian civiliansnear the settlements of Kiryat Arba and Harsina in
orderto expand andbuild a wall aroundthe two settlements.
31 December Land Levelling:Israelibulldozers continueto levelland belonging to
Palestinian civiliansnear the settlementsofKiryatArba and Harsina in
orderto expand andbuild a wall aroundthe two settlements.
1January Land Levelling:Israeli bulldozers continueto levelland belonging to
Palestinian civiliansnear the settlementsof Kiryat Arba and Harsina in
order to expand andbuild a wall aroundthe two settlements.
2 January Land Levelling:Israeli bulldozers continueto level agricultural land
belonging to Palestinian civilians near the settlementsof KiryatArba and
Harsina in order to expand andbuild awall aroundthe two settlements.
5 January Land Levelling:Israeli bulldozers continue to level agriculturallandnear
the settlementof Kiryat Arba.
6 January LandLevelling:Israeli bulldozers continue to level agricultural land north
and east of the settlementsof Kiryat Arba and Harsina.
SettlementActivitv: The Israeli authoritiesbegan constructionof 144
housing units on Palestinian land for the expansion of Harsina settlement.
7January Land Levelling:(i) Israeli bulldozers continueto level agricultural land
north and east of the settlements of Kiryat Arba and Harsina.
(ii) Israelibulldozerslevelled agriculturalland and demolished fences in Al
'Amib refugee camp, adjacentto the Hebron/Jerusalem road.
Land Confiscation:TheIsraeli authorities issuedordersconfiscating land
south ofthe city of Hebron in order to expandthe settlementof Haggai.
13January Land Levelling:The Israeli army leveled 15dunums (3.75 acres)of
agriculturalland located southwest of the settlement of Kiryat Arba for
expansion and construction of a wall enclosingthe settlement.
16January ChemicalDestruction:3 Israeli helicopters sprayedan unidentified
chemical substanceover 1000dunums (250 acres) of agriculturalland east
of the town of Yatta. Al1cropswere destroyed.
18January LivestockSlau~hter/Fine:The Israeli armykilled 250 sheepthat were
grazing in the Wall closed zone inthe town of Yatta. The Israeli army then
demandedthe owner of the livestock, Othman Jubariya, pay a fine of
64,500NIS (14,660USD).QALQILYA
Passage through the Wall gates in the Qalqilyadistrictis restrictedto civiliansgranted
specialIsraelipermits which arebased on no specificcriteria.This Israeli closure
continuesto harm the educationprocess since teachers, amongst others, arenot granted
access throughthe gates,particularly in areas locatedbehind the Wall.
14December Wall Gates: The gates leading to the agricultural lands of the town of
Jayyus and the village of Falamya were closed,preventingfarmers,even
those with permits, from accessingtheir lands.
15December Wall Gates: (i) The Israelianny prevented vehicles and water supply
tankers fi-omcrossing through the Wall gates, while detainingcivilians at
the gate of Ras Al Tiravillage, locatedbehindthe Wall, until 19:OO.
Students studying outside the villagewere delayeduntil 16:30.
(ii)The Israeli army prevented vehicles carrying food supplies from
entering the villages of al-Tira,ad-Dab'a and Wadi al-Rasha located behind
the Wall.
(iii) The Israeli army prevented a doctor from crossingthe gate of Ras Al
Tiravillage to attendNibal TawfikMara'ba, an 11year-old patient
suffering from ahigh fever.Nibal andher fatherwere prevented from
leavingthe villageto receive medical care.
16December Wall Gates:-(i) The villages of Ad Dab'a, Ras al-Tira, 'Arabar Ramadin,
'Arab Abu Fardaand Wadi Rasha, locatedbehindthe Wall, remain closed
for the 4thconsecutive day.The Israeli army has prevented employees,
students,medical units and ambulances fi-ompassing through the Wall
gates.
(ii) Entrance through the remaining western gates is only open to civilians
with specialpermits fromthe Israeli Civil Administration.
25December Closure: At 0 155, the Israeli army raidedthe village of 'Azzun(located
behind the Wall), searched several civilian houses, and sealed off the area of
'Azzun 'Atma,preventingcivilians fi-omleavingthe village.
Wall Gates: The Israeli army arrested 3 children under the age of 12,
including2 brothers, on the groundthat they weretoo close to one ofthe
Wall gatesin Qalqiliya city.
26December Demolition Orders: TheIsraeli army warned several civilians in the
village of 'Azzun 'Atma (locatedbehindthe Wall) that 10houses and
storehouseswould be demolished soon.
12January Settlement Activiw: TheIsraeliMinister of Defense set a budget of 92
million NIS (approx. $20million USD) for the construction of abypass
road connectingthe settlementofAlfe Menashe and Karnei Shomeron. This
implies the confiscation ofthousandsof dunums of Palestinian land.SALFIT
8 December Tree Uprooting:At 21:45, an Israeli bulldozer uprooted olivetrees in the
town of Kafi 'Ein.
23 December Closure:TheIsraeli army closedthe iron gate at the entrance of the town of
Deir Ballut.
MedicalObstructionIDeath:The Israeli army prevented an ambulance
carrying Lamis Taysser who was in labor, from crossingthe iron gate. The
medical team in the ambulance delivered the twin babies at the checkpoint.
One ofthe twins died during birth.
24December Wall PropertyDemolitions:The Israeli army informed the owners of
several stores located on the main road that their stores would be
demolished for construction of the Wall.
Death: The secondtwin of Lamis Ibrahim, 26 years old, who gavebirth to
twin babies atthe entrance of Deir Ballut afterthe Israeli armyprevented
the ambulance carryingherto pass, died today. The first baby died shortly
after birth. Lamis Ibrahim is currentlybeing treated for shockresulting
fiom the death of her twins.
SettlerViolence:At 20:00, settlersfiom the settlement of Kfar Tapu'ach
demolished a room housing power generators that provide electicity to the
villageof Yasuf.
3 January SettlementActivity: The Israeli authoritiesallocated $225,000USD for
constructionof a settler bypass road connecting the settlement of Ariel and
the outpost of Tappuah Mari in order to annex the outpostto Ariel
settlement.
18January Wall Construction:The Israeli army served eviction orders to residents
located west of Salfitto evacuatethe area by 15February 2004 for
construction ofthe Wall. Pholagraysh 1:Qalq~lya(Augus12003) Sectronof the Wall CornpiexsurtoundrngQalqrlya.
Photograph 2: Qafq~lya(Jul2003) Q:alqrlyanorthernarea greetlhouses rsola011the tzresternçrdeuf
the Wall On4 Oclober 2003. the lsraelrArrnycloçed the agrtculturalgate allawrngfarrners accesçto this
area The gale was never re-opened Palestrntanfarrnershave çtarteddrçmantlrngand sellingtherr
greerihacisesaMersuffetrngf~nanciallasses due to the repeatedclosuresPhatograph 3: Qalqrlya(Seplember2003) One of 13 IçtaelArmy watchtawerssurraidnd~ng Qalq~lya
Phalograph 4 AbuDIS,Occtrp~ed East Jerusalem (Jan~aary2004) Exampleof howthe Wall dlvldes
Palest~tlratlne~ghborhoudç Photagraph 5: Abu
Jeruçalern(JarJary
near theWall rnAbc
Phatagraph6: Daba,Qalq~lyG a overnorate{March 20031 IçraelbulldozersrrpraatlngPalestlnlaolive
groves tnthePcllest~nraangrllaefDabaPhaPograph 4sBaba. Qalqrlya Governorate{March2003) lsraeli bulldozersuproolrngPalesCrtiran oirve
graves trithe Palesliriiati village of Daba.
Photagraph et:Al-Daba.QalqrlyaGovernorate(March2003): ElderlyPalestinianfatiners from the
Palesl~n~avnrllageof Dabawateh as therrolrvecropçare uprootedibyIçrael~bulldozersPholograph9: Nazlal Issa.luikarem Govetnorate 121Augusl 2003) In A12g~rs 2t003, the lsraeli Army
deslrayed 124 marketslallç and 7 hames 8r1hat waç once one of the larcgel pen-arrmarkets Inthe
Occupled Fsaltlslln~nerrrlory On 21 Jancrary2003 62 stalfs were destroyed On2-5Augusl2003 lsraeit
mrtglaryorder 0357°C $vas~ssuedconltsçatlngthe marketarea land,statrrigthaITwas "out of necessttyto
protect lsrael~settlements Inthe area.'ie nearestseltlernenl 'Horrnesh 14 kllomelers away
Photograph 40: NazlaZIssa,TulkaremGovernorate (Qctober2003): Palestrnlanmercliants arnldst
the rubbleof the destroyeclmarketareaPhorlographi 3: Nazlal Issa. Ttllkarem Govetnorale (24 Navember20031:Afler the deslruct~unof the market
AtlgljsT2003, the rubblewas cleared ar-rclfçrael~sprepareto erect the 8- meter t?lghcoricrefe Wall
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fhe~rland Inthe ClosedZone
Photograph i4: Qalqrlya(November 2003). Qalq~lyanorthernarea gate cloçed srnce4 October 20Q3 It kas
never re-apened Over 280 Qalq~lyafarmerç dependail tl?lsgate to accessthe~rfarms and gt-eenhausesPhatograpk 15: Qalyilya fLS September 2003) Çrgn posted rtearthe Walt rnQalqrlyawilh Içraelzarmy
watcfitower itthe background
Photograph: "I Jayyus, QalqilyaGovernorate (15 October 2003) Farr~iersIlne-upto atlempt tu cross the
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agrrculturalgales From 4- 24 October, As a result,Jayyus los! 90D0of ttsguava cropPtlafograph 49: Jayyus, QalqilyaGovernorate(19 October 20031:Jayyus farrnerswarttîigfor the gate ta
open 8fiIy 7 tractors and 2 trucks from Jayyusout of 300farmer hausehaldsfiave vel-rlcularpermrtslo
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Phatagraph 28:JayysrusQ , alq~lyaGavernorate ihlovembet 2003): Palestintanfarmer wtth lsraeli mtlitay
~ssuedCloseclk-ofieaccess permlt is checked by lsraetrsoldiers beforecrossingta hrslandon the western
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Jayyus agr~cutlutalgale
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Photograph24: The fsrael~'Kfarfapuah' se-ttlernent
Irnkelfwlth one of rtsoutpasts srtuatedon a hiIllop sci~
of the Palestrnianclty af Nablus Inthe Occupled
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,?re;xea?pt 2013:-'c;?ern1 sfs:ar Cointernationale deJustice
Enr----tréauGreffe le:
InternationalCourt ofJustice(3)
Filedintheon:
INTERNATIONALCOURTOFJUSTICE
LEGAL CONSEQUENCESOFTHE CONSTRUCTION
OFAWALLINTHE OCCUPIEDPALESTINIAN
TERRITORY
(REQUESTFORANADVISORYOPINION)
VOLUME 2
DOCUMENTARYANNEX
SUBMITTED BY
PALESTINE
30 JANUARY2004 ANNEX 1
Report of the SpecialRapporteur of the Comission on Human
Rights on the situationof human rights inthe Palestinian territories
occupiedby Israel 1967,
4 October01,Al561440 UnitedNations A1561440
(e V eneralAssembly Distr.: General
4 October 2001
k-1
Original: English
Fifty-sixth session
Agenda item 119 (c)
Human rights questions: human rights situations and
reports of special rapporteurs and representatives
Question of the violation of human rights in the occupied
Arab territories, including Palestine
Noteby the Secretary-General*
The Secretary-General has the honour to transmit to the members of the
General Assembly the interim report on violations of international humanitarian law
andhuman rights in the Palestinian terrsince 1967, submitted by
John Dugard, Special Rapporteur, pursuant to Commission on Human Rights
decision 20011246., section00117 and Economic and Social Council
*1accordance with General Assembly rIIparagr10the preseiit report
is being sub4October 2001 so as to include as much updated information as possible.
01-56549(E)1001 Report of the SpecialRapporteurof the Commission on
Human Rights on the situation of human rights in the
Palestinian territories occupied by Israel since 1967
Contents
Paragraphs Page
1. Introduction .......................................................... 1-3 3
II. The mandate of the Special Rapporteur .................................... 4-5 3
6-10 4
III. The occupation as the root cause of the conflict...........................
IV . Violenceandlossoflife ................................................ 11-16 6
V. Occupation and the second intifada ....................................... 17-28 7
A. Settlements ....................................................... 18-22 8
B. Dernolition of houses and destruction of property....................... 23-24 9
C. Closure and checkpoints: restrictions on freedorn of rnovernent ............ 25-27 9
D . OrientHouse ..................................................... 28 10
VI. Concluding remarks .................................................... 29-33 10 1. Introduction
1. The current Special Rapporteur, John Dugard (South Africa), was appointed in
July 2001. In August 2001, the Special Rapporteur undertook a mission to the
Occupied Palestinian Territories and Israel. Meetings were held with Palestinian and
Israeli non-governmental organizations, international agencies in the region and
members of the Palestinian Authority. Unfortunately, the Special Rapporteur was not
able to meet with Israeli authorities as the Government of Israel made it clear at the
outset of his appointment that it would not cooperate because of objections it has to
the terms of his mandate. (This matter is discussed below.) On this mission, the
Special Rapporteur met with interlocutors in the Gaza Strip, Jerusalem and the West
Bank. The Special Rapporteur also visited Rafah, Beit Jala and Shu'afat to see the
destruction of houses and property, and Jericho, to examine the manner in which the
Cityhad been closed by means of trenches cutting off access roads.
2. In February 2001, the Special Rapporteur visited the area as the chairperson of
the Human Rights Inquiry Commission established pursuant to Commission on
Human Rights resolution S-511of 19 October 2000. That Inquiry Commission spent
more time in the area, consulted more widely with informed persons and prepared a
more comprehensive report (ElCN.4/2001/121) than the present report. The Human
Rights Inquiry Commission criticized the excessive use of force employed by the
Israeli Defense Force, the assassination of prominent Palestinians, the presence and
expansion of Settlements in the West Bank and Gaza, the activities of settlersand the
closure of Palestinian areas, which has resulted in the widespread violation of
economic and social rights. The Commission made a number of recommendations
designed to bring an end to the military occupation of the Occupied Palestinian
Territories and to establish a dispensation that meets the legitimate expectations of
the Palestinian people concerning the realization of their right to self-determination
and the genuine security concerns of the people of Israel.
3. The present report is based on the two visits made to the area in 2001,
consultation and discussion with persons outside the area, the study of materials on
the situation in the Occupied Palestinian Territories and wide media coverage.
II. The mandate of the SpecialRapporteur
4. The mandate of the Special Rapporteur is to be found in two instruments. In
resolution 199312,section A, the Commission on Human Rights decided to appoint a
Special Rapporteur with the following mandate:
"(a) To investigate Israel's violations of the principles and bases of
international law, international humanitarian law and the Geneva Convention
relative to the Protection of Civilian Persons in Time of War, of 12 August 1949, in
the Palestinian territories occupied by Israel since 1967;
(b) To receive communications, to hear witnesses, and to use such modalities
of procedure as he may deem necessary for his mandate;
(c) To report, with his conclusions and recommendations, to the Commission
on Human Rights at its future sessions, until the end of the Israeli occupation of
those territories." In resolution 200117, the Commission on Human Rights welcomed the
recommendations contained in the reports of the High Commissioner for Human
Rights (E/CN.4/2001/114) and the Human Rights Inquiry Commission
(E/CN.4/2001/121), urged the Government of Israel to implement them and
requested "the Special Rapporteur on the situation of human rights in the Palestinian
territories occupied since 1967, acting as a monitoring mechanism. to follow up on
the implementation of those recommendations and to submit reports thereon to the
General Assembly at its fifty-sixth session and the Commission at its fifty-eighth
session".
5. The mandate of the Special Rapporteur has been criticized by a number of
States, particularly Israel, on the ground that it singles out Israel for special attention
as a violator ofhuman rights despite the fact that, since the implementation of the
Oslo Accords (A/51/889-S/1997/357), and related agreements the control of the
lives of over 90 per cent Palestinians has passed to the Palestinian Authority, which
now has full control over the so-called "A" zones which include most Palestinian
cities and towns. There would be substance in this criticism if the mandate of the
Special Rapporteur were to investigate and report on Israel's violations of human
rights in the Occupied Palestinian Territories without regard to the military
occupation of those territories. This would be unfair as the Palestinian Authority
does, for instance, have full jurisdiction over the administration of justice in the "A"
zones and in most societies it is in this field that most violations ofhuman rights
occur. The mandate of the Special Rapporteur is not, however, to investigate human
rights violations in the Occupied Palestinian Territories outside the context of
military occupation. Resolution 199312, section A makes it clear that the Special
Rapporteur is required to investigate violations of international humanitarian law
committed by the occupying authority - Israel - until the end of the Israeli
occupation of the Occupied Palestinian Territories. There is a close connection
between international humanitarian law and human rights - a connection
reaffirmed by the General Assembly in its resolution 2675 (XXV). It is therefore
impossible to examine violations of international humanitarian law or general
internationallaw without reference to human rights norms, particularly in a situation
of prolonged occupation of the kind that continues to prevail in the Occupied
Palestinian Territories. The mandate therefore includes the investigation of human
rights violations cornmitted by Israel in the Occupied Palestinian Territories, but
only in the context of military occupation. Iis the prolonged military occupation of
the Occupied Palestinian Territories which makes the mandate of the Special
Rapporteur unusual and which distinguishes it from other special rapporteurships
established by the Commission on Human Rights.
III. The occupation as the root cause of the conflict
6. In 1967, Israel occupied the West Bank and Gaza Strip. This occupation
continues sorne 34 years later. Israel has invoked a number of arguments to support
itslegal claim that the Fourth Geneva Convention relative to the Protection of
Civilian Persons in Time of War of 1949 is not applicable to the Palestinian
territories occupied by Israel since 1987, including East Jerusalem. First, it argues
that as the sovereignty of Jordan over the West Bank was questionable and Egypt
never asserted sovereignty over Gaza, there was no sovereign Power at whose
expense Israel occupied these territories. Consequently, although lsrael is a party tothe Fourth Geneva Convention of 1949, it maintains that it is not bound by law to
treat the territories as occupiedterritories within the meaning of the Fourth Geneva
Convention. Secondly, it now argues that, even if the above argument is incorrect,
that Israel can no longer be viewed as an occupying Power in respect of the "A"
areas, accommodating the majority of the Palestinian population, because effective
control inthose areas has been handed over to the Palestinian Authority.
7. Neither of those arguments is tenable in law. The first, premised on a strained
interpretation of article of the Geneva Convention, fails to take account of the fact
that the law of occupation is concerned with the interests of the population of an
occupied territory rather than those of a displaced sovereign. The second, that Israel
is no longer an occupying Power because it lacks effective control over "A" areas of
the Occupied Palestinian Territories, is likewise unacceptable. The test for the
application of the legal regime of occupation is not whether the occupying Power
fails to exercise effective control over the territory, but whether it has the ability to
exercise such power, a principle affirmed by the United States Military Tribunal at
Nürnberg In re List and others (The Hostages Case) in 1948. The Oslo Accords
leave Israel with ultimate legal control over al1 of the Occupied Palestinian
Territories and the fact that for political reasons it has generally chosen not to
exercise this control over the "A" zones, when it undoubtedly has the military
capacity to do so (as illustrated by the Israeli military incursion into the "A" zone
town of Beit Jala in August 2001), cannot relieve Israel of its responsibilities as an
occupying Power.
8. The international community therefore rejects the argument that the Fourth
Geneva Convention is inapplicable to the Occupied Palestinian Territories. Repeated
resolutions of the Security Council and the General Assembly cal1 upon Israel to
comply with the prescriptions of the Convention and reject the purported annexation
of East Jerusalem by Israel. For the international community, the Fourth Geneva
Convention is the governing law.
9. Violence in the Occupied Palestinian Territories and Israel during the past
several months has tended to obscure the fact that the root cause of the present
conflict in theregion is military occupation. Media reports are so concerned with the
killing of Palestinian leaders by carefully directed missiles and with suicide
bombings within Israel that the fact of occupation is overlooked. At times. the
conflict is portrayed as if it were an international conflict between two States,
employing different instruments of war, over "disputed territories". At other times, it
is portrayed as an interna1 conflict with the rebels employing terror as a military
strategy. The United States-brokered "Tenet ceasefire plan" (Ha'aretz, June 14,
2001), while a laudable attempt to end the violence in the region, nowhere mentions
the military occupation in its concern for security and crisis management. It should
not, however, be forgotten that Israel occupied the West Bank (including East
Jerusalem) and the Gaza Strip by force in 1967; that this occupation should be
brought to an end, as by its very nature military occupation is a temporary
phenomenon pending an acceptable peace settlement; and that until the occupation
is terminated, Israel, as the occupying Power, is obliged to comply with the Fourth
Geneva Convention.
10. The present report focuses on military occupation as the root cause of the
present conflict in the Occupied Palestinian Territories and Israel, as the cause of the
violation of huinan rights and humanitarian law in the region. It aims to restore occupation to centre stage. The violence in the region, whether caused by Israeli
rocket-ships or Palestinian suicide bombers, is to be deplored and condemned. It is
the immediate cause of the loss of life, of the violation of the right to life, that
features pre-eminently in al1 human rights conventions. However, it is not the
ultimate explanation for the violation of basichuman rights in the region. This must
be found in the military occupation of a people by an occupying power.
IV. Violence and loss of life
11. Since the start of the second intifada, in September 2000, over 530 Palestinians
have been killed and over 15,000 injured. More than 150 Israelis have been killed.
Most of those killed and injured have been civilians.
12. The first few months of the second intifada were characterized by violent
clashes between Palestinian protesters, whose weapons were Stones and molotov
cocktails, and the Israel Defense Force. Most deaths and injuries were the result of
gunfire from the Israel Defense Forces. In its report, the Human Rights Inquiry
Commission found that the Israel Defense Forces had responded in a
disproportionate manner to protesters and was guilty of the excessive use of force
(E/CN.4/2001/121, paras. 44-52). Since then, the situation has changed radically as
the Palestinians have moved from protest to armed force and the Israelis have
responded by using heavier weaponry. Today, most Palestinian deaths have resulted
from missile attacks directed at selected individuals suspected of terrorism, but
which, inevitably, have also killed innocent bystanders, and from shootings carried
out by soldiers and settlers, often after an exchange of gunfire. Israeli deaths have
largely been caused by terrorist bombs in Israel itself and-by gunfire directed at
settlers on bypass roads or in the proximity of Settlements.
13. In February 2001, the Human Rights Inquiry Commission had difficulty in
categorizing the situation as a non-international armed conflict, defined by the
Appeals Chambers of the International Criminal Tribunal for the Former Yugoslavia
in the Tadic case as "protracted armed violence between governmental authorities
and organized armed groups". Today, as a result of the frequent exchanges of
gunfire between the Israel Defense Forces and Palestinian gunmen, it is probable
that thisthreshold has been met, albeit on an irregular and sporadic basis. However,
while the Israel Defense Forces are now engaged in both law enforcement and
action in armed conflict, and may therefore be entitled to greater latitude in the
exercise of its powers as an occupying force. it is not freed from al1restraints under
international humanitarian law and human rights law. It is still obliged to observe
the principle of distinction requiring that civilians not be made the object of attack
"unless and for such time as they take a direct part in hostilities" (a principle
reaffirmed in article 51(3) of Additional Protocol 1to the Geneva Conventions). In
addition, the Israel Defense Forces are obliged to comply with the principle of
proportionality, which requires that injury to non-combatants or darnage to civilian
objects not be disproportionate to the miiitary advantages derived from an operation.
Above all, the Israel Defense Forces are subject to article 27 of the Fourth Geneva
Convention, which stipulates that "protected persons are entitled in al1
circumstances, to respect for their persons and shall at al1times be humanely treated.
and shall be protected especially against al1acts of violence or threats thereo...". 14. Both Israelis and Palestinians have violated important norms of humanitarian
law and international law as the confrontation has changed its character. Israel's
freely acknowledged practice of selected assassination or targeted killings of
Palestinian activists cannot be reconciled with provisions of the Fourth Geneva
Convention, such as articles 27 and 32, which seek to protect the lives of protected
persons not taking a direct part in hostilities. They also violate human rights norms
that affirm the right to life and the prohibition on execution of civilians without trial
and a fair judicial process. There is no basis for killing protected persons on the
basis of suspicion that they have engaged or will engage in terroristic activities. In
addition, many civilians not suspected of any unlawful activity have been killed in
these targeted killings, in the bombing of villages or in gunfire exchanges, in
circumstances indicating an indiscriminate and disproportionate use of force.
15. The force employed by Palestinians is also contrary to the norms of
international law. The shooting of settlers cannot be justified.Despite the fact that
the Settlements violate article 49(6) of the Fourth Geneva Convention, and the fact
that the settlers' presence in the Occupied Palestinian Territories isillegal, settlers
remain civilians and cannot be treated as combatants, unless, of course, they are
engaged as soldiers in the Israel Defense Forces. The planting of bombs in public
places in Israel, resulting in loss of life of innocent civilians, is contrary to emerging
norms of international law, now codified in the 1998 International Convention for
the Suppression of Terrorist Bombings (General Assembly resolution 52/164),
article 2 of which criminalizes such conduct. The extent to which these actions are
subject to the control of the Palestinian Authority is uncertain. No doubt it could do
more to prevent the shooting of settlers and the culture of violence that produces
suicide bombers. On the other hand, despite Israeli claims to the contrary, it seems
unlikely that Palestinian violence is subject to any centralized control. In this
respect, it differs from the Israeli use of force.
16. The failure of attempts to end the violence, either by calls for a ceasefire from
the parties to the conflict, or from third States (notably the United States), or by
security arrangements brokered from outside (such as the Tenet plan), suggests that
the time has come for some international presence in the region to monitor and
reduce the use of violence. This obvious conclusion was affirmed by the G8 Foreign
Ministers in their meeting in Rome on 18 and 19 July 2001. Despite this, attempts to
persuade the Security Council to approve such a plan have failed. The Special
Rapporteur finds it difficult to understand why no serious attempt has been made by
the international community to persuade Israel to accept such a presence (the
Palestinian Authority having already agreed to an international presence).
International monitors or peacekeepers have been employed in many less
threatening situations in the world and there is no reason why the Occupied
Palestinian Territories should be treated differently.
V. Occupation and the second intifada
17. The principal cause of the second intifada and of the escalating violence, in the
view of the Special Rapporteur, is the continuing occupation -an occupation which
has continued for over 34 years in the face of condemnation by the United Nations;
an occupation whose substance (albeit not form) remained unaltered throughout the
period of negotiations resulting fi-omthe Oslo Accords; an occupation that continues
to frustrate and humiliate Palestinians. In the opinion of the Special Rapporteur, peace will not be restored to the region until there is clear evidence of an intention
on the part of the occupying Power to put an end to the occupation. At present.
however, there is little evidence of such an intention. On the contrary, the signs of
occupation have intensified since the start of the second intifada. Expanding
settlements, demolition of houses and the destruction of propei-ty, restrictions on
freedom of movement and the economic blockade are a constant reminder to
Palestinians of the occupation.
A. Settlements
18. The international community is united in its categorization of Jewish
settlements in the West Bank and Gaza as contrary to article 49(6) of the Fourth
Geneva Convention, which prohibits an occupying power from transferring parts of
its own civilian population into the territory it occupies. Numerous resolutions of
the Security Council and the General Assembly have condemned the settlements as
illegal.
19. Today, there are some 190 settlements in the West Bank and Gaza, inhabited
by approximately 380,000 settlers, of whom some 180,000 live in the East
Jerusalem area. Settlements are linked to each other and Israel by a vast system of
bypass roads (from which Palestinian vehicles are excluded), which have a 50 to 75-
metre buffer zone on each side of the road in which no building is permitted. These
settlements and roads, which separate Palestinian communities and deprive
Palestinians of agricultural land have fragmented both land and people. In effect,
they foreclose the possibility of a Palestinian State as they destroy the territorial
integrity of the Palestinian territory.
20. The relationship between settlers and Palestinians is an unhappy one and each
side views the other with hostility, anger and suspicion. Protected by the Israel
military, and exempt frorn the jurisdiction of the courts of the PalestiniaAuthority,
settlers have committed numerous acts of violence against Palestinians and
destroyed Palestinian agricultural land and property. Since the beginning of the
second intifada, incidents of settler violence have dramatically increased. Palestinian
hostility towards settlers has grown alarmingly since the start of this intifada and
most of the Israelis killed in the present conflict have been settlers or soldiers
charged with the task of protecting settlements and roads leading to settlements.
21. That peace is impossible without a complete freeze on al1 settlement activity
was emphasized by the "Mitchell report" of 20 May 2001 (report of the Sharm AI
Sheikh Fact-finding Committee). The response of the Government of Israel to that
recommendation was far from satisfactory. It declared that "it is already part of the
policy of the Government of Israel not to establish new settlements. At the same
time, the current and everyday needs of the development of such communities must
be taken into account". In other words, the "natural growth" of the settlements will
continue.
22. The evidence of the continued expansion of settlement activity is al1too clear.
During his visit, the Special Rapporteur saw evidence of this in the form of
construction activity in the settlements of Har Homa and Pisgat Ze'ev and in the
extension of the buffer zones adjacent to bypassfsettler roads in the Gaza Strip. He
also received evidence of the growth in the number of housing units. the expansion
of the territoriallirnits of settlements by means of caravan outposts established adjacent to settlements, and of an increase in the settler population in the West Bank
and Gaza from 203,067 in December 2000 to 205,015 in June 2001. Generous tax
breaks and cheap housing in the settlements ensure that their growth will continue.
B. Demolition of houses and destruction of property
23. The demolition of houses in Palestinian territory, either for security purposes
(as in Rafah) or for administrative reasons (as in the refugee camp of Shu'afat)
continue. Since September 2000, over 300 homes have been completely demolished
(compared with 93 in 1999). The Special Rapporteur saw evidence of the demolition
of houses in Rafah and Shu'afat by bulldozer and of the destruction of houses in
Beit Jala by missiles. This action, on the part of the Israeli authorities, is difficult to
reconcile with article 53 of the Fourth Geneva Convention, which prohibits the
destruction of property except where rendered "absolutely necessary by rnilitary
operations". While Israel sees this action as justified on grounds of military
necessity, Palestinians see it as part of a larger design to restrict Palestinian growth,
encourage Palestinian emigration and humiliate the people.
24. The creation of buffer zones for bypass roads and settlements has resulted in
the "sweeping" of large areas of agricultural land by bulldozers.A total of 385,808
fruit and olive trees have been uprooted, and wells and agricultural constructions
destroyed.
C. Closure and checkpoints: restrictions on freedom of movement
25. Since 29 September 2000, Israel has irnposed severe restrictions on freedom of
movement in the occupied territories. International borders with Egypt and Jordan
have been closed, the Gaza Strip has been sealed off from the rest of the Palestinian
territory and over a hundred checkpoints have been placed on roads in the West
Bank. The Israel Defense Forces have placed checkpoints atthe entrances to villages
and entry and exit are often possible only via dirt roads, entailing enormous
hardships. Trips that once took 15 minutes now take several hours. In some of the
villages, mostly inareas near settlements and bypass roads, the dirt roads have also
been blocked with large concrete blocks and piles of dirt, and residents are
irnprisoned in their villages. The Special Rapporteur visited the city of Jericho,
which has been encircled by a deep trench to deny vehicles access to the city except
through an Israel Defense Forces checkpoint.
26. The cumulative effect of these restrictions on the freedom of movement of
people and goods is understandably perceived by the Palestinians affected as a siege.
It has resulted in severe socio-econornic hardships in the Palestinian territory. The
interna1 closures have effectively sealed Palestinian population centres and restricted
movement from one locality to another. The restriction on the entry of Palestinians
into Israel has meant denial of access to their places of work in Israel to an
estimated 115,000 Palestinians. The economic results have been devastating: the
families of these workers are now suffering from a complete lack of income,
threatening them with destitution. Over 50 per cent of the Palestinian workforce is
now unemployed. Health and education have also suffered. Ambulances are
prevented from transporting the sick to hospitals and some schools have been unable
to operate owing to curfews and closures. 27. Road checkpoints have beconle a regular feature of Palestinian life.
Palestinians are obliged to wait for lengthy periods while Israeli soldiers check
vehicles and inspect identity documents. In order to avoid these delays Palestinians
often abandon their cars or leave their taxi and cross the checkpoint on foot to catch
a taxi on the other side ofthe checkpoint. This practice indicates the purpose of the
exercise. Itis not to prevent would-be suicide bombers from crossing checkpoints
that lead to Israel, as any such person may walk around the checkpoint carrying
heavy baggage. Rather, it is to humiliate Palestinians and to put pressure on them to
cease resistance to Israeli occupation. In this sense. it is a collective punishment of
the kind prohibited by article 33 of theFourth Geneva Convention.
D. Orient House
28. On 10 August 2001, Israeli security forces seized and occupied Orient House,
the political headquarters of the Palestinian people in East Jerusalem, in retaliation
for a suicide bomb attack in West Jerusalem. This action, which may be seen as
îurther evidence of a determination on the part of the Government of Israel to assert
its authority as an occupying Power, has exacerbated an already tense situation and
placed another obstacle in the path of peace.
VI. Concluding remarks
29. It is clearly necessary to bring the present violence in the Occupied Palestinian
Territories and Israel to an end. Targeted killings of selected Palestinians by guided
missiles, terrorist bombings in Israel and the indiscriminate killing of civilians by
both sides must cease. That this is difficult to achieve is confirmed by the failures of
numerous proclaimed ceasefires in recent months - failures for which both Israelis
and Palestinians must accept responsibility. In these circumstances, there is a clear
need for some international presence, either in the form of monitors or
peacekeepers, to ensure that the ceasefire holds - or at least does better than at
present. It is recommended that both Israel and the Palestinian Authority should
agree to such an international presence. It is incumbent on the international
community to ensure that such an agreement is forthcoming.
30. Israel's continued refusal to accept the Fourth Geneva Convention relative to
the Protection of Civilian Persons in Time of War as the governing law makes it
imperative that the High Contracting Parties to the Convention convene as soon as
possible to consider the applicability of the Convention and the violation of the
Convention.
31. International humanitarian law and human rights noms have been seriously
violated in the present conflict. Both Israelis and Palestinians should make every
endeavour to promote respect for the rule of law. Israel's violation of the freedom of
movement in the Occupied Palestinian Territories requires particular attention.
32. Settlements are an ever visible and aggravating sign of occupation and of
Israel'sillegal conduct as an occupying Power. It is not enough to merely impose a
freeze on settlements. Steps must now start to dismantle settlements.
33. There is a need to rebuild confidence on both sides as a prelude to the
resuinption of negotiations leading to a permanent settlement. The Palestinianscould undoubtedly help to restore confidence by taking firmer measures to prevent
terrorism in Israel. More is needed from Israel. Until Israel takes some action that
indicates a willingness to contemplate the termination of the occupation, it is
unlikely that the Palestinians will accept its good faith in negotiations aimed at a
permanent settlement. Such action might take the form of a start in the dismantling
of settlements: for example. the withdrawal of al1settlements from the Gaza Strip.
The Special Rapporteur appeals to the Government of Israel to take some action of
this kind to restore confidence in the peace process. ANNEX 2
Report of the SpecialRapporteur of the Commission on Human
Rights, Mr.JohnDugard, on the situation of human rights in the
Palestinian territoriebyIsrael since 1967,
6 March 2002,CN.4/2002/32 UNITED
NATIONS
Economic and Social Distr.
GENERAL
Council
E/CN.4/2002/32
6 March 2002
Original: ENGLISH
COMMISSIONON HUMANRIGHTS
Fifty-eighthsession
Item 8of the provisionalagenda
QUESTIONOFTHE VIOLATIONOFHUMANRIGHTSIN THE
OCCUPIED ARAB TERRITORIES,INCLUDINGPALESTINE
Report of the Special Rapporteur of the Commission onHuman Rights,
Mr.John Dugard, on the situation of humanrights in the Palestinian
territories occupied by Israelsince 1967
GE.02-11269 (E)110302 CONTENTS
Executivesummary .........................................................
...............................
1. INTRODUCTION ................................................1.......... 4
II. THE MANDATEOF THE SPECIALRAPPORTEUR ............ 7- 10 5
II. OCCUPATIONAND TERRORISM ..............................1....15. 7
IV. VIOLENCEAND LOSS OF LIFE ...............................16..22... 9
V . SETTLEMENTS .................................................3..2...... 12
VI. BUFFER ZONES ....................................................8.....
..13
VI1. DEMOLITIONOFHOUSESANDDESTRUCTION
OFPROPERTY ..................................................9..32....... 13
VI11. RESTRICTIONSON FREEDOMOF MOVEMENT ..............33 .34 14
IX. ECONOMICAND SOCIALDISTRESS ...........................5..38.. 14
X . REFUGEES ......................................................39
.........15.
XI. CHILDREN .....................................................4.............16
XII. CHILDRENAND THE ADMINISTRATION
OFJUSTICE .......................................................
..........18
XII1. CONCLUSIONSAND RECOMMENDATIONS ..................54..58 19 Executivesummary
The Special Rapporteur's interpretationof his mandate, as being to investigate violations
of international humanitarian law and human rights in the context of military occupation, has
been challengedby the Government of Israel in documentE/CN.4/2002/129. The Special
Rapporteur requests the Commission to give a ruling on this matter.
There are different perceptions of the cause of the violence in the Palestinian Territory.
Palestinians seethe military occupation of their territory as the principal cause of the present
crisis. Israelis, on the other hand, see terrorism as the cause of the crisis. Terrorism is a scourge
that threatens Israelis and Palestinians alike and every effort should be made to bring terrorism to
an end, whether it is perpetrated by instrumentsof the State, by organized non-State groups or by
individuals. At the same time, it is importantto stressthat the main explanation forthe acts of
terrorism committed by Palestinians against Israelis is the military occupation. It is this
occupation that is responsible for most of the violations of humanitarian law and human rights in
the region.
Sincethe start of the second intifada, in September2000, nearly 1,000Palestinians
have been killed and about 17,300injured. More than 260 Israelis have been killed and
about 2,400 injured. Most of those killed and injuredhave been civilians, many of them
children. Violence is escalating rapidly in the region as both parties to the conflict employ more
dangerous weaponry and show more determination in causing harm to life and property. In this
situation, initiativesfor a ceasefire or a cessation of violence as a precondition forthe resumption
of talks between Israelis and Palestinians seemdoomed to fail. Only an effective international
presence in the region with the powerto monitor and reduce the use of violence can achieve this
goal. The SpecialRapporteur therefore believesthat there is a need for an international
peacekeeping mission, structured and composedto meet the circumstances of the region.
Settlementsare an ever-visible and aggravating sign of occupation and of Israel's illegal
conduct as an Occupying Power. Although Israel has undertaken not to establish new
settlements, the existing settlements are expandingboth interms of land and settlers.
The demolition of houses in the PalestinianTerritory continues unabated. In the
Gaza Strip alone, over 400 houses have been completely destroyed and 200 seriously damaged,
leaving over 5,000 persons homeless. Moreover,the creation of buffer zones for bypass roads
and settlementshas resulted in the "sweeping" of large areas of agricultural land by bulldozers.
Israel's restrictionson fieedom of movement,resulting fi-omcheckpoints, have caused
great personal, social and economic hardships to civilians in no way involved in the conflict.
They constitute collective punishment of the kind prohibited by article 33 of the Fourth Geneva
Convention.
Children have suffered greatly inthe present crisis. Every effort should be made by the
Israeli military authorities to ensure that the safety and welfare of schools and schoolchildren are
respected. It is further recommended that an investigationbe conducted into allegationsof
inhuman treatment of children underthe militaryjustice systein and that iminediatesteps be
taken to reinedy this situation. 1. INTRODUCTION
1. The current Special Rapporteur, John Dugard (South Africa), was appointedin July 2001.
In August 2001and in February 2002the Special Rapporteur undertook missionsto the
Occupied Palestinian Territoryand Israel. Meetingswere held with Palestinian and Israeli
non-governmental organizations, Palestinian and Israeli interlocutors, internationalagencies in
the region and members ofthe PalestinianAuthority, includingthe President ofthe
Palestinian Authority, Yasser Arafat. Unfortunately,the Special Rapporteur was notable to
meet with Israeli authoritiesas the Govemment of Israelmade it clear at the outset when he was
appointed that it would not cooperate because of objections it has to the terms of his mandate.
(This matter is discussed below.) On these missions, the Special Rapporteur metwith
interlocutors inthe Gaza Strip,Jerusalem andthe West Bank. InAugust 2001the Special
Rapporteur visitedRafah, Beit Jala and Shu'afatto seethe destruction causedto houses and
property, andJericho to examinethe manner inwhich the city had beenclosed by means of
trenches cuttingoff access roads. In February 2002, he again visited Rafahto seethe house
demolitions carriedout by the Israel Defense Forces (IDF)in January 2002.
2. In February 2002the Special Rapporteur made a special study ofthe impact ofthe
present crisis on children. Meetingswere accordingly held with educationoff~cialsof the
Ministry of Education of the PalestinianAuthority, school principals and teachers, university
authorities and non-governmental organizations concemed withthe treatment of child prisoners.
The Special Rapporteur visited the Universityof Bir Zeit andthe Al-Khader school in the district
of Bethlehem and interviewedjuveniles who testified aboutill-treatmentthey had been subjected
to when they had been arrested and detained bythe Israeli authorities.
3. While the Special Rapporteur wasin Gaza on 10and 11February 2002, Gaza City was
subjected to heavy bombing, which caused extensivedamage to offices ofthe United Nations
Special Coordinator (UNSCO)in Gaza. The SpecialRapporteur wasthus able to experience at
first hand the military assaults to whichthe Palestinian people are regularly subjected.
4. In February 2001,the Special Rapporteur visitedthe area as the chairperson ofthe
Human Rights Inquiry Commission establishedpursuantto Commission on Human Rights
resolution S-511of 19 October 2000. The report of this Commission is containedin
document E/CN.4/2001/121.
5. The present report isbased on the visits madeto the area in August 2001 and
February 2002, consultation and discussionwith personsin and outside the area, the study of
materials onthe situation inthe Occupied Palestinian Territory and wide media coverage.
6. In October 2001 the SpecialRapporteur submitted a report, based on his visitto the
region inAugust 2001,to the Third Committeeofthe General Assembly. The report, contained
in document A/56/440, was duly consideredby the Third Committee inNovember 2001.
On 7 December2001 the Governmentof Israel submitted a responseto this report: see
document E/CN.4/2002/129. The criticisms containedinthis response andthe Special
Rapporteur's replyto these criticisms are dealt within the present report. II. THEMANDATE OFTHE SPECIALRAPPORTEUR
7. The mandate of the Special Rapporteur isto be found in two resolutions of the
Commissionon Human Rights. In resolution 199312,sectionA, the Coinmission decidedto
appoint a special rapporteur with the following mandate:
To investigateIsrael'sviolations of the principles and basesof international law,
(a)
international humanitarianlaw and the Geneva Convention relativeto the Protection of Civilian
Persons inTime of War,of 12August 1949,in the Palestinian territories occupiedby Israel
since 1967;
(b) To receive communications, to hear witnesses,and to use such modalities of
procedure ashe may deem necessaryfor his mandate;
(c) To report, with his conclusionsand recommendations,to the Commission on
Human Rightsat its future sessions, until theend ofthe Israeli occupationof those territories.
In resolution 200117,the Commission welcomed the recommendations containedin the reports
ofthe High Commissioner for Human Rights (E/CN.4/2001/114)and the Human Rights Inquiry
Commission (E/CN.4/2001/121),urgedthe Government of Israelto implementthem and
requested the Special Rapporteur onthe situation ofhuman rights inthe Palestinian territories
occupied since 1967,actingas a monitoring mechanism,to follow up on the implementation of
those recommendationsand tosubmit reports thereon to the GeneralAssemblyat its
fi@-sixth session andthe Commissionat its fifty-eighth session.
8. In his report of October 2001 (A/561440),the Special Rapporteur stated that his mandate
required him to investigatehuman rights violations inthe Occupied Palestinian Territory within
the context of military occupation. In support of this interpretationof the mandate, he reasoned
as follows:
"Resolution 199312,section A makes it clearthat the Special Rapporteur is
requiredto investigateviolations of international humanitarianlaw committed by the
occupying authority -Israel -until the endof the Israeli occupation ofthe Occupied
Palestinian Territories. Thereis a close connection between international humanitarian
law andhumanrights - a connection reaffirmed bythe General Assembly in its
resolution 2675 (XXV). It is therefore impossibleto examine violationsof international
humanitarian law or general internationallawwithout referenceto human rights norms,
particularly in situation of prolonged occupationof the kind that continuesto prevail in
the Occupied Palestinian Territories. The mandate therefore includes the investigation of
human rights violations committedby Israel in the Occupied Palestinian Territories,but
only inthe contextof military occupation. It isthe prolonged military occupationof the
Occupied PalestinianTerritories which makesthe mandate of the Special Rapporteur
unusual and which distinguishesit fromother special rapporteurships establishedby the
Commissionon HumanRightsn(para.5).9. The Governmentof Israel has raised a numberof objectionsto this reasoning, which it
claims has resulted in an unprecedentedexpansive interpretation ofthe mandate. These
objections andthe responses thereto appear below:
(a) Objection: it is inaccurate to describe the situation in the Palestinian Territoryas
one of militaly occupation onthe ground that since the implementationofthe Oslo Accords
(A/51/889-S/1997/357,annex) and related agreementsthe control ofthe lives of over 98 per cent
of the Palestinians has passed to the Palestinian Authority, which nowhas full control overthe
so-called A areas which include most Palestinian cities and towns.
Response: While it istrue that many powershave beentransferred by Israel tothe
Palestinian Authority - includingthe important area ofthe administrationofjustice, in which
most violations of human rightsoccur -the reality isthat Israel not only hasthe power to
intervene inthe occupied territories, includingthose designatedas A areas, on groundsof
security, but that ithas infact done so in recent months. The denialthat Israel is in military
occupation ofthe territories is impossible to reconcile with recent military incursionsinto
Ramallah, Bethlehem, Gaza,Beit Jala, Beit Rima and Tulkarem,the presence of Israeli tanks
outside President Arafat's headquarters in Ramallah and over 150military checkpointsinthe
occupied territories that have seriously disruptedthe lives of Palestinians livingin the A areas.
Moreover, ittakes no account of article 47 of the Fourth Geneva Convention, whichprovides
that protected personsin an occupied territory shall not be deprived"in any case or in any
manner whatsoever" ofthe benefits ofthe Convention by anychangeto the governmentof the
territory resulting fiom an agreement concluded betweenthe authorities of the occupied
territories andthe OccupyingPower.
(b) Objection: International humanitarianlaw andhuman rights law are "subject to
separate internationalregimes". The close connection betweenthe two "does not implythat the
area of humanitarian law cannot be investigated without extendingthe mandate ofthe Special
Rapporteur to cover humanrights law".
Response: The purpose of the principal international instrument concerned withthe
protection of civiliansunder military occupation,the Fourth Geneva Conventionof 1949,is to
ensure respect forthe human rights of protected persons. Thisis made clear by article 27 ofthe
Convention, which providesthat the OccupyingPower is to respect thefundamentalrights of
protected persons. Accordingto the Commentary of the InternationalCommitteeofthe
Red Cross on this provision: "The rightto respect forthe person must be understoodin its
widest sense: it covers al1the rights ofthe individual, that is,the rights and qualities whichare
inseparable fiomthe human being by the very fact of his existence and his mentaland physical
powers; it includes, inparticular, the rightto physical, moral and intellectual integri-an
essential attributeof the human person" (p. 201). The "rights of the individual" have been
proclaimed, described and interpretedin internationalhuman rights instruments,particularlythe
international covenants on civil and political rights, and economic, social and cultural rights
of 1966,and inthejurisprudence of their monitoring bodies. These human rights instruments
therefore complementthe Fourth Geneva Conventionby definingand giving contentto the rightsprotected in article 27. This is borne outby repeated resolutions ofthe General Assembly (for
example, resolution 2675 (XXV)) andby the Vienna Declaration adoptedby the World
Conferenceon Human Rights in 1993,whichdeclared that:
"Effective international measuresto guarantee and monitorthe implementationof human
rights standards shouldbe taken inrespect of peopleunder foreign occupation, and
effective legal protection against the violation of theiran rights should be provided,
in accordance with human rights norms and internationallaw, particularly the
Geneva Convention relativeto the Protection of Civilian Personsin Time of War,
of 14August 1949,and other applicablenorms of humanitarian law."
(c) Objection: In the case of a prolonged occupation,such as that of the Palestinian
territories,the law of occupation envisagesthat"the Occupying Power will not become more
bound, but less bound by the legal regime". In support of this contention,the Government of
Israel citesthe commentary of the InternationalCommitteeof the Red Crosson article 6of the
Fourth Geneva Convention to the effect that ifthe occupation continues for a prolonged period
afier the general cessation of hostilities,"a time would doubtlesscome when the application of
the Conventionwas no longerjustified, especially ifmost ofthe governmental and
administrativeduties carried out at one time by the Occupying Powerhad been handed over
to the authorities of the occupiedterritoryV(p.62).
Response: Unfortunatelythe time has not comein the Occupied Palestinian Territory
when the application of the Convention isno longer or lessjustified. The transfer of
governmental and administrative powers tothe Palestinian Authority in A areas has not
diminishedthe need forthe protection of the people ofthe territories fiom the Occupying Power
forthe reasons set out in the present report. Thiswas made clear inthe Declaration adopted
on 5 December 200 1by the High Contracting Parties tothe Fourth Geneva Convention, which
reaffirmsthe applicability ofthe Convention tothe Occupied Palestinian Territory and reiterates
"the need forthe full respect for the provisionof the said Convention inthat Territory" (para.3).
10. The Government of Israel hasraised a number of serious objections to the Special
Rapporteur's interpretationof his mandatewhichcal1for attention. The Special Rapporteur
requests thatthe Commission considerthismatter at its session in2002 and issue a directiveon
the subject sothat the scope of the present mandate isnot in dispute.
There are different perceptionsof the causeofthe violence in the region. Palestinians see
11.
the military occupationof their territoryasthe principal causeof the present crisis. Every
Palestinian is today personallyanddirectly affectedby the occupation: freedomof inovement is
seriously impeded by Israeli military roadblocks (checkpoints)thathave transformed short
journeys into major excursions; the standard of livinghas been drastically lowered by the
closure/blockadeof cities and towns and the livelihoodof many isthreatened; education has
been seriously disruptedand health care undermined; homes have been demolished and
agricultural land "swept" by bulldozers; militants (and innocent bystanders) arekilled by rocketsfrom the skies; tanks parade throughcities under the administrative controlof the
Palestinian Authority; fighterjets andhelicopters patrolthe skies and terrorize the people with
their shelling; and Israeli settlers drivealong special roads, accompanied by military convoys,to
settlements that seemto grow and grow. It is smallwonder,therefore, that Palestinianssee the
military occupationas the denial oftheir dignity, as anobstacle in the way of Palestinian
statehood and as the source of violencein the region.
12. The Israeli perceptionis verydifferent. Israelissee terrorism as the cause ofthe crisis.
Suicide bombers who enter Israeli shopping districts, suburbs andSettlements,snipers who shoot
at passing traffic, and gangswho stab pedestrians in the parks have instilled a sense of fear into
al1Israelis. There isno guarantee of safety on the streets or roads, in shopping malls, restaurants
or nightclubs. Palestinian violenceisnot seen as a response to Israeli military occupationof the
Palestinian Territory but asterror directedat the very existenceofthe State of Israel.
13. Since 11September, international support forthe beliefthat terrorism isthe main
problem to be confronted inthe regionhas inevitably grown. That terrorism is a threatto the
present world order cannot, and should not,be denied. That terrorism is a scourgethat threatens
Israelis and Palestinians alike cannot and shouldnot be denied. Every effort should bemade to
end violence intendedor calculatedto create a state of terror inthe minds of particular persons or
the general public, whetherit is perpetrated by instrumentsof the State, by organized non-State
groups or by individuals.' At the sametime, it is importantnotto ignorethe main explanation
for the acts of terrorism committedby Palestinians against Israelis -the military occupation. It is
the occupation of the Palestinian Territorythat gives rise to savage acts of violence, highlighted
by suicide bombings. The occupation also has other,lessobvious, consequences forthe
occupier. As Mr. Avraham Burg, the Israeli parliamentary speaker, statedin the Knesset
on 28 January 2002:
"An occupyingpeople, even if it was led into being an occupier against itswill, ends up
being harmed by the occupationand its stains,which change and disfigure it. We should
not forget thatthejailer and his prisoner remainlockedup for most of the day behind the
sarnewalls and withouthope. To put it in other, more stark terms, respected members,
the occupationcorrupts."
1
In document E/CN.4/2002/129the Governmentof Israel criticizes the Special Rapporteur for
referring to "emergingnoms of internationallaw" prohibiting terrorism. Exception is
apparently taken to the word "emerging". In response the Special Rapporteur wishesto point out
that while the international communityhas succeeded in criminalizing by treaty speciesof
terrorism such as hijacking, aerial sabotage,hostage-taking,offences against diplomats, seizure
of aircraft and terroristbombing, ithas not yet agreed on a comprehensive definitionof
terrorism. Indeedthis issue is currently beforethe Sixth(legal) Committeeof the
General Assembly, where the debateover the response to State terror continues to create
definitional difficulties.This reminder of the consequences of occupation forthe occupier was echoed in a statement
by 60 Israeli army reservists, half of them officers and al1of them combat veterans, when they
announced that they would refuse to continue serving in the Palestinian Territory:
"We will no longer fight beyondthe Green Line for the purpose of occupying, deporting,
destroying,blockading, killing, starving and humiliating an entire people" (International
Herald Tribune, 29 January 2002).
Support for this position is growing daily (International Herald Tribune, 20 February 2002).
14. It is against this background that it is necessaryto reiterate that it isthe military
occupation of the Palestinian Territory that is responsible for most of the violations of
humanitarian law and hurnanrights described inthis report. Similarly it is necessary to recall the
applicabilityof the Fourth Geneva Convention as the goveming law. On 5 December 2001, the
High Contracting Parties to the Fourth Geneva Convention reaffirmed the applicability of this
Conventionto the Occupied PalestinianTerritory, reiterated the need for full respect for the
provision of the Convention and recalledthe obligationsunder the Convention of the parties to
the conflict and ofthe State of Israel as the Occupying Power.
15. The Israeli argument that it is no longerthe Occupying Power in respect of the A areas
of the Palestinian Territory, accounting for 98 per cent ofthe population, is not supported by
the facts on the ground. The harsh realities of occupation -shelling,tanks and roadblocks -
are evident in the A areas, as well as in other areas of the Palestinian Territory. The
Palestinian Authority may have powers of administration and local government but ultimately
Israel has effective control over the lives of Palestinians throughout the Territory. According to
article 42 of the Hague Regulation of 1907,occupationextends only to the territory where the
authority of the hostile army "has been established and can be exercised". It cannot seriously be
suggestedthat this threshold has not in recent months been reached in the Palestinian Territory.
IV. VIOLENCEANDLOSS OF LIFE
16. Sincethe start ofthe second intifada, in September2000, nearly 1,000Palestinians
have been killed and about 17,300injured. More than 260 Israelis have been killed and
about 2,400 injured. Most of those killed and injuredhave been civilians, many of them
children.
17. The first few months of the second intifadawere characterized by violent clashes
between Palestinian protesters, whose weapons were stones and molotov cocktails, and the IDF.
Most deaths and injuries were the result of gunfire from the IDF. In its report, the Human Rights
Inquiry Commission found that the Israel Defense Forces had responded in a disproportionate
manner to protesters and were guilty of excessive use of force (E/CN.4/2001/121, paras. 44-52).
Sincethen, the situation has changed radically as the Palestinians have moved from protest to
armed force and the Israelis have responded by using heavier weaponry. Today, most
Palestinian deaths have resulted from missile attacks directed at selected individuals suspected ofE/CN.4/2002/32
page 10
terrorism (but which, inevitably, have also killed innocent bystanders), shelling and shootings
carried out by soldiers and settlers, often after an exchange of gunfire. Israeli deaths have
largely been caused by terrorist bombs in Israel itself and by gunfire directed at settlers on
bypass roads or in the proximity of settlements.
18. It is difficult to categorize the present conflict. At times it assumes the character of a law
enforcement action by the IDF. But at others it probably qualifies as an armed conflict as a
result of the protracted amed violence between the IDF and Palestinian militia (in the
language of the Prosecutor v. Tadit, International Criminal Tribunal for the Former Yugoslavia,
reported in (1996) 35International Legal Materials, at p. 54). In the case of such a conflict
both parties are obliged to respect the rules of international humanitarian law. Hence the call
by High Contracting Parties to the Fourth Geneva Convention on 5 December 2001to both
parties to the conflict to:
"ensure respect for and protection of the civilian population and civilian objects and to
distinguish at al1times between the civilian population and combatants and between
civilian objects and military objectives. They also call upon the parties to abstain from
any measures of brutality and violence against the civilian population whether applied by
civilian or militaryagents and to abstain from exposing the civilian population to military
operations".
19. Both Israelis and Palestinians have violated important noms of humanitarian law and
international law as the confrontation has changed its character. Israel's fieely acknowledged
practice of selected assassination ortargeted killings of Palestinian activists, which has resulted
in the killing of some 60 persons, cannot be reconciled with provisions of the Fourth Geneva
Convention, such as articles 27 and 32, which seek to protect the lives of protected persons not
taking a direct part in hostilities. They also violate human rights norms that affirm the right to
life and the prohibition on execution of civilians without trial and a fairjudicial process. There
is no basis for killing protected persons on the basis of suspicion that they have engaged or will
engage in terroristic activities. In addition, many civilians not suspected of any unlawful activity
have been killed in thesetargeted killings, in the bombing of towns and villages or in gunfire
exchanges, in circumstances indicating an indiscriminate and disproportionate use of force.
20. The force employed by Palestinians is also contrary to the norms of international law.
The shooting of settlers cannot bejustified. Despite the fact that the settlements violate
article 49 (6) of the Fourth Geneva Convention, and the fact that the settlers' presence inthe
Occupied Palestinian Territories is illegal, settlers remain civilians and cannot be treated as
combatants, unless, of course,they are engaged as soldiers in the Israel Defense Forces or in
vigilante-type military operations. (The growing militarization of settlements and settlers is to
be deplored as it encouragesthe belief that force may be used against settlers.) Indiscriminate
attacks against civilians, includingbomb attacks carried out by suicide boinbers, intended to
create a state of terror among the civilian population, violate norms of humanitarian law and
general international law. The extent to which these actions are subjectto the control of the
Palestinian Authority is uncertain. There is, however, no doubt that it could do more to prevent
the shooting of settlers and the culture of violence that produces suicide bombers. E/CN.4/2002/32
page 11
- 21. An unfortunate feature of the presentsituation is the failure of both parties to the conflict
to investigateatrocities and to prosecute and punish those responsible. Israel regularly, and with
justification, castigates the Palestinian Authority for its failure to arrest those responsible for the
murder of Israelis orto detain those suspected of being responsible for acts of terrorism in Israel.
This complaint,which features prominently in the Western media, is used as ajustification for
refusingto resume negotiations with the Palestinians. Yet Israel is itself at fault in this respect as
it too, with itssophisticated police apparatus, has failed to apprehend settler vigilantes
responsible for killing Palestinian civilians or to prosecute members of the armed forces guilty
of the indiscriminateuse of force. Inthe wake of the killing of a Palestinian family at Idna in
July 2001, anIsraeli columnist, Gideon Levy, wrote inHa'aretz on the subject of the Israeli
restraint in taking action against those responsible for atrocities against Palestinians:
"In a time of increasing Palestinian terror, no day passes without pogroms by settlers, and
the police, the Israel Defense Forces and the other security forces stand there, sometimes
closingtheir eyes and sometimes winking ...The restraint over actions by the extreme
right includes al1governmental authorities: the police, the IDF,the Shin Bet, the courts
and the authorities that grant pardons. It is a dangerous restraint, whose putrid fruits led
to the most recent murder at Idna: the persons who carried it out believed that their
chances of getting caught were infinitesimal ...The restraint .. undermines Israeli
arguments regarding the PA'Sinabilityto fight terror: it is a littlehard to complain about
the 'revolvingdoor', the lack of arrests and failure to prevent terror at a time that Israel, a
sovereign Staterich in security apparatuses,does the sarnething when it comes to its
own, home grown terror." (22 July 2001)
22. Violence is escalating rapidly in the region. Israel, with its arsenal of sophisticated
weaponry, istaking tougher measures against Palestinians and Palestinian targets. F 16fighter
aircraft and Apache helicopters patrol the skies; heavier bombs pound Palestinian targets;
bulldozers plough through more buildings;tanks parade through A area towns; and the military
presence at roadblocks intensifies. The Palestinian response is equally tough: while suicide
bombershave created terror in the Israeli heartland, militarized groups armed with rifles, mortars
and Kassam-2rockets confiont the IDF with new determination, daring and success. In this
situation,calls for a ceasefire or a cessation of violence as a precondition for the resumption of
talks between Israelis and Palestinians are doomed to fail. Only an effective international
presence inthe region with the powerto monitor and reduce the use of violence can achieve this
goal. The SpecialRapporteur is aware of Israel's objections to such a proposal: memories of the
withdrawal of the United Nations EmergencyForce (UNEF) fromthe Egyptian border facing
Israel in 1967;the fear that a UnitedNations force will be able to curb Israeli conventional
violence, but not Palestinian suicidebombers and snipers; and, above all, the argument that this
will "internationalize" the conflict. United Nations peacekeeping operations have not met with
successon al1occasions. This no one can deny. On the other hand, they have served to reduce
tensions in many conflicts and, ultimately,to restore peace. The present conflict is already
international in the sense that it is one between a State and a nascent State, with many of the
characteristicsof statehood. The danger isthat it will draw in other States in the region. If this
isto be avoided and the level of violence brought under control, it seems that there is no
alternativeto an international peacekeeping mission, structured and composed to meet the
special circumstances of the region.E/CN.4/2002/32
page 12
V. SETTLEMENTS
23. The international communityis united in its categorizationof Jewish settlements inthe
West Bank and Gaza as contrary to article49 (6) of the Fourth Geneva Convention, which
prohibits an OccupyingPower from transferring partsof its own civilian populationinto the
territory it occupies. In numerous resolutions the SecurityCouncil andthe General Assembly
have condemnedthe settlements as illegal and intheir Declarationof 5 December 2002,the
High ContractingParties to the Fourth Geneva Convention reaffirmed this position.
24. Today, there are some 190settlements inthe WestBank and Gaza, inhabited by
approximately 390,000 settlers, of whomsome 180,000liveinthe East Jerusalem area.
Settlements are linkedto each other and Israel by a vast system ofbypass roads (from which
Palestinian vehiclesare excluded), which have a50-to 75-metre bufferzone on each side of the
road inwhich no building is permitted. These settlements and roads, whichseparatePalestinian
communities and deprive Palestinians of agricultural landhave fragmented both land and people.
In effect, they foreclosethe possibilityof a Palestinian Stateas they destroythe territorial
integrity of the Palestinian Territory.
25. The relationship between settlers and Palestiniansis an unhappy one and each side views
the other with hostility,anger and suspicion. Protectedby the Israeli military, andexempt fiom
thejurisdiction ofthe courts of the Palestinian Authority, settlers have committednumerous acts
of violence against Palestinians and destroyed Palestinian agricultural land and property. Since
the beginning ofthe second intifada, incidents ofsettler violence have dramatically increased.
Palestinian hostilitytowards settlershas grown alarminglysincethe start of this intifadaand
most of the Israelis killed inthe present conflict havebeen settlers orldiers charged with the
task of protecting settlements and roads leading to settlements.
26. That peace is impossible without a completefieeze on al1settlement activitywas
emphasized bythe "Mitchell report" of 20 May 2001 (report ofthe Sharm El Sheikh
Fact-finding Committee). The responseof the Governmentof Israelto that recommendation
was far from satisfactory. It declaredthat "it is alreadypart of the policy of the Government of
Israel not to establishnew settlements. Atthe sametime, the current and everyday needsof the
development of such communities must be taken into account". In other words,the "natural
growth" of the settlements will continue.
27. The evidence ofthe continued expansion of settlement activity is al1too clear. During
his visits, the Special Rapporteur saw evidence ofthis inthe form of construction activity in the
settlements of HarHoma and PisgatZe'ev and inthe extension of the buffer zones adjacent to
bypasslsettlerroads in the Gaza Strip. He also received evidenceof the growth inthe number of
housing units, the expansion of the territorial limitsof settlementsby means of caravan outposts
established adjacentto settlements,and of an increaseinthe settler populationinthe West Bank
and Gaza from 203,067 in December 2000to 205,015 in June 2001. Generoustax breaks and
cheap housing inthe settlements ensurethat their growth will continue. E/CN.4/2002/32
page 13
VI. BUFFERZONES
28. A new form of Israeli territorial expansion inthe Occupied Palestinian Territory is the
security buffer zone along the green line inthe northern West Bank near to Jenin. This zone,
ranging in width fiom a few metresto several kilometres, is closed to non-residents. It is likely
that the IDF will make greater use of suchzones in future. This was promised by Prime Minister
Sharon in an address to the Israeli nation on 21February 2002.
VII. DEMOLITIONOFHOUSESANDDESTRUCTIONOFPROPERTY
29. The demolition of houses in the PalestinianTerritory, either for security purposes (as in
Rafah) or for administrative reasons (as in Shu'afat) continues unabated. Inthe Gaza Strip
alone, over 400 houses have been completelydestroyed,while a further 200 have been seriously
damaged, leaving over 5,000 persons homeless. On 10January 2002, 60 houses were
completely demolished in the refugee camp of Rafah, rendering 614 persons homeless. The
SpecialRapporteur visited the site of the demolishedhouses in Rafah in both August 2001 and
February 2002. He also visited demolishedhouses in Shu'afat andsaw the damage caused to
homes by Israeli shelling in Beit Jala.
30. The demolition of houses generallytakes place in the middle of the night, without
warning being given to residents. The followingaccount of a house deinolition given by a
resident of Rafah capturesthe horror of such an event:
"On Thursday [IOJanuary], 1was woken at about 2 a.m. by the sound of tanks
and bulldozers that had come fiom the direction of the Israeli army post. 1got out of bed
and saw that my sons had also woken up. The bulldozers were approaching the house
and we decided to leave immediately. We woke upthe others and got out. We managed
to proceed a few metres when three bulldozersreached the house. Immediately, one of
them started to demolish the house. 1stood in the rain for a few moments, unable to
believe that 1wouldn't eversee my house again. The children were screaming and one of
them asked me to run away because he was afraid 1would get hurt. We fled to the
adjacent street. 1stood there with my wife, children, grandchildren and others in iny
family and watched for 10minutes as the bulldozer destroyed Ourhouse." (B 'Tselem,
"Israel's policyof house demolitions and destruction of agricultural land in the
Gaza Strip", February 2002).
It inustbe recalled that most persons affected by such demolitions are refugees fiom the 1948
war. For them it represents the eliminationof yet anotherhome. No compensation is paid by
Israel.
3 1. The practice of house demolitionshas serious legal consequences. First, it may,
according to the Committee againstTorture, in certain instances amount to cruel, inhuman or
degrading treatment or punishment in breach of article 16of the Convention against Torture and
Other Cruel, Inhuman, Degrading Treatment or Punishment,which Israel ratified in 1991
(Conclusions and recommendations of the Committeeagainst Torture of November 2001 on the
third periodic report of Israel). Secondly,it may, interms of article 147of the Fourth GenevaE/CN.4/2002/32
page 14
Convention, constitute a grave breachof the Convention, involving penal consequenceswhere it
constitutes "an extensive destruction...of property, notjustified by military necessityand
carried out unlawfullyand wantonly". While thereare doubtless instances in which houses have
been demolished for genuine security reasons, the extent ofthe damage and the evidence of
witnesses suggeststhat the destructionof houses in many instances is not "rendered absolutely
necessary by military operations"(as required by article 53 of theFourth Geneva Convention)
and instead constitutes collective punishment (prohibitedby article 33 ofthe Convention).
Violation of these noms carries with it not only acriminal sanction but also a dutyto
compensate the victim.
32. The creation of buffer zones for bypass roadsand settlements has resultedin the
"sweeping" of large areas of agricultural land by bulldozers. A totalof 285,808 fruit and olive
trees have been uprooted, and wells and agricultural constructionshave been destroyed. Lasting
harm has been done to the environment bythese acts of destruction, designed tosecure the
comfort and security of illegal settlements.
VIII. RESTRICTIONSON FREEDOMOFMOVEMENT
33. Since 29 September2000, Israel has imposedsevere restrictions on freedomof
movement in the occupied territories. Internationalborderswith Egypt and Jordan have been
frequently closed;the Gaza Striphas been sealed offfromthe rest of the Palestinian Territory;
Gaza Airport has been closedand damaged; travel within Gazais frequently obstructedby the
closure of the road between north and south; andover a hundred checkpoints have been placed
on roads inthe West Bank. In the West Bank, the Israel DefenseForces have placed checkpoints
at theentrancesto villages and entry and exit are ofien possible only via dirt roads, entailing
enormous hardships. Trips that oncetook 15minutesnowtake several hours. In some of the
villages, mostlyin areas near settlements and bypassroads,the dirt roads have also been blocked
with large concrete blocks and piles of dirt, and residents are imprisonedin their villages. In
August 2001,the Special Rapporteur visited the city of Jericho, whichhas been encircled by a
deep trench to deny vehicles accesstothe city except through anIDF checkpoint.
34. Road checkpoints have become a regular featureof Palestinian life. Palestiniansare
obliged to wait forlengthyperiodswhile Israeli soldierscheck vehicles and inspect identity
documents. In order to avoidthese delays Palestiniansoften abandon their cars or leave their
taxi and cross the checkpointon footto catch a taxi onthe other side ofthe checkpoint. This
practice suggeststhat the purposeof this exercise is not to prevent security risks fiom crossing
checkpoints that leadto Israel,as any such person may walk aroundthe checkpoint carrying
heavy baggage. Rather, it isto humiliate Palestiniansand to put pressure on them to cease
resistance to Israeli occupation.Inthis sense, it is a collective punishmentof the kind prohibited
by article 33 ofthe Fourth Geneva Convention.
IX. ECONOMICAND SOCIALDISTRESS
35. The cumulative effectof the restrictionson the fieedom of movement of people and
goods is understandably perceivedby the Palestinians affected as a siege. It has resulted in
severe socio-economic hardshipsinthe Palestinian Territory. The interna1closures have E/CN.4/2002/32
page 15
effectively sealed Palestinian population centres and restricted movement froin one localityto
another. The restriction on the entry of Palestinians into Israelhas meantdenial ofaccessto
their places ofwork in Israel to an estimated 115,000Palestinians. The economic results
have been devastating: the familiesofthese workers are now sufferingfiom a complete lack
of income,threatening them with destitution. Thirty-six per cent ofthe Palestinian workforce is
now unemployed, compared with20 percent before the start ofthe intifada. Fifiy per centof
Palestinians live belowthe poverty line ofUS$2 per day, morethan doublethe poverty rate
beforethe intifada. There has been a decreaseinthe per capita incomeof 47 per cent;
and 45,000 households are classifiedas special hardship cases requiring emergency assistance
registered withthe Palestinian Authority's Ministryof Social Affairs. UNSCO estimates that
the total incomelosses to the Palestinian economyduringthe period 1October 2000
to 31December 2001range between US$3.1 and 4.0 billion, whichtranslates into total income
lossesranging between US$6.8 and 8.8million per day.
36. Access to food and waterhas beenseverely obstructed by the closure. Food trucks face
difficultiesinentering Gaza in particular,while food priceshave increasedas a result of higher
transport costs resulting from the closure. Waterresources havebeen reduced owing to obstacles
placedin the way of water trucks,the destructionof wells, rooftopwater tanks and rain
collection poolsby shelling, the damaging of water sourcesby settlers and soldiers and the high
consumptionof water by settlers.
37. Health care and education have also suffered. Ambulancesand private vehicles
transportingthe sick to hospitals in emergency situationsare held upat checkpoints, sometimes
with fatal consequences. Access to regular healthcare at hospitals and clinicshas also been
made difficultby checkpoints andthe use of medical services has declined substantially.
Specialattention is paid below to the effect ofthe crisis on children and education.
38. The closure violates a number of provisions ofthe InternationalCovenanton Economic,
Social and Cultural Rights, notablyarticle 11(which recognizes"the right of everyone to an
adequate standardof living for himself andhis family, including adequate food,clothing and
housing,and to the continuous improvementof livingconditions") and article 12(which
recognizes"the right of everyone to the enjoyment ofthe highest attainable standardof physical
and mental health"). It is also impossibleto reconcilethe closure with articles23, 55 and 56 of
the Fourth Geneva Convention, which requirethefiee passage of consignmentsof medical and
hospital stores andthe fiee passageof foodstuffs,clothing and medicines intended for certain
vulnerable categories ofpersons and imposea duty to ensure foodand medical supplies to the
population andto ensure and maintainmedical and hospital establishmentsand services, public
health and hygiene inoccupied territories.
39. Itisnot within the mandateof the SpecialRapporteur to pronounce onthe
implementationof the right of returnof Palestinian refugees recognizedin General Assembly
resolution 194(III) of 1948or on the institutionalarrangementsforthe protection of refugees.
No report onthe violation of humanitarianlawand human rights inthe Palestinian TerritoryE/CN.4/2002/32
page 16
would, however, be complete without special mention of the impact of the present crisis on
refugees. Comprising over 50 per centof the Palestinian population, refugees are particularly
vulnerable to Israel's militaryassaults and economic blockade, on account of the location of
many refugee camps near to settlements, settlement roads and the Egyptian border, and the
disadvantaged position of most refugees in the labour market. More than half of the Palestinians
killed since September 2000 have been refugees. The number of houses demolished or severely
damaged in refugee camps is at leasttwice the number outside refugee camps. According to the
United Nations Relief and Works Organization for Palestine Refugees in the MiddleEast
(UNRWA) 320ofthe 401 houses demolished in the Gaza Stripwere homes to refugees.
Unemployment is higher amongrefugees than non-refugees as is the number of households
below the poverty line. Palestinian refugees are particularly vulnerable to higher rates of poverty
as a result of negative changes in the economy. This is due to a relative lack of accumulated
savings and thus no safety net to protect them fiom a high dependency on wage labour,the lack
of access to land-based forms of subsistence, Le.,agriculture or property, and the large number
of dependants per family prevalent in camp populations, which limits the ability of refugee
families to absorb drastic and lengthy decreases in income.
XI. CHILDREN
40. Children have suffered severely from the present crisis in.terms of persona1safety, family
life, physical and mental health, education andjustice. Although Israeli MilitaryOrder No. 132
defines a child as someone under the age of 16,the present report acceptsthe international
standard of 18(article 1of the Convention on the Rights of the Child, 1989),which is also the
position under Israeli law. By this standard, over half the population of Palestine are children.
41. Over 200 of the Palestinians killed since the start of the second intifada in
September 2000 have been children,while over 7,000 children have been injured. Of those
injured, 500 will experience long-term disabilities. In the early months of the present intifada
many children were killed or wounded by the IDF for participating in demonstrations involving
the throwing of stones and molotov cocktails. Live ammunition, rubber-coated steel bullets
and tear gas were used to disperse demonstrators in a display of excessive and disproportionate
use of force (see report of the Human Rights Inquiry Commission of 16March 2001,
E/CN.4/2001/121, paras. 44-52, 116). In the past year, most ofthe children killed or injured by
the IDFwere not engaged in confrontational demonstrations, but were victims of shelling by
tanks and helicopter gunships,whilethey were engaged in normal peaceful pursuits.
Particularly disturbing are the deaths of five young boys in Khan Yunis on 22 November 2001,
caused by a suspicious explosive device, and of three youths crossing a field near Beit Lahia
on 30 December 2001, caused by heavy artillery fire. Calls for a full investigation into these
deaths have, as yet, not met with a positive response.
42. Inevitably the economic hardships inflicted on the Palestinian communityby the
"closure" of the Palestinian Territory has had aserious impact on the lives of children. The
inajority of children in the WestBank and Gaza now live belowthe poverty line and families are
compelled to reduce food consumption. Domestic violence is on the increase and children are
becoming increasingly aggressivethemselves. Access to hospitals and clinics is obstructed by
inilitary checkpoints. And the constant shelling, gunfire and presence of a hostile occupying
army has had serious psychologicalconsequences on ail, but particularly on children. E/CN.4/2002/32
page 17
43. Education is a top priority in Palestine. There are about 865,500children enrolled in
priinary and secondary schools, administered mainly by the Palestinian Authority and UNRWA.
Since 1994,manynew schools have opened and student numbers have increased substantially.
The PalestinianAuthority devotes 13per cent of its budget to education,whilemore than half of
the UNRWA budget goes to education. Education, at al1levels,however, has suffered seriously
since 29 September2000, particularly in the 275 schools, with some 118,600 students, within
a 500-metreradius of an Israeli military presence.
44. Someschools have been commandeered by the IDF for use as military outposts; others
have been bombed; over a hundred have come under fire, both in the daytime when the schools
are in sessionand at night. On 20 February 2001 the National School forthe Blind in the
West Banktown of Al-Bireh came under fire for three hours, causing extensive damage and
traumatizing the disabled children. On some occasions, the IDF has fired tear gas into schools
and orderedchildren to evacuate. Sometimes schools have been closed by the IDF for alleged
security reasonsor by the school authorities forthe safety of the children. The Al-Khader
secondary school in the Bethlehem district, which the SpecialRapporteur visited, was closed
for 45 daysby military order, affecting some 2,500 students. This school has been seriously
damaged bythe IDF, which has on occasion entered the schoolpremises during teaching hours,
assaulted studentsand used tear gas to disperse students. Schoolsare also hampered by
checkpoints,which prevent both students and teachers fromreaching school on time, and by
military curfews (particularly in Hebron).
45. The effect of the above actions on education has been severe. Schoolshave lost
considerableteaching time as a result of interruption and closures; absenteeism is rife as schools
no longerprovide a secure environment; and academic performance has deteriorated. Children
are afraid andunable to concentrate. It is impossibleto assessthe long-termpsychological harm
caused to childrenby these assaults on their schools,the killing and wounding of their friends
and the growingpoverty they experience at home. Many have simply losttheir childhood.
46. Universityeducation has also been adversely affected bythe crisis. The University of
Bir Zeit, for instance,has lost severalweeks of classes as a result of the closure of access roads
to the university,while the military checkpoints leadingto the university interferewith the
normal lifeof the institution and provide a daily opportunity for harassment of staff and students
by the military. The arrest of students has also had a serious impacton university life and cast a
shadow on the free exchange of ideas.
47. The right to education is reaffirmed in the International Covenant on Economic, Social
and CulturalRights (art. 13)and the Convention on the Rights of the Child (arts. 28-29).
Moreover, article 50 ofthe Fourth Geneva Convention providesthat the
"Occupying Power shall, with the cooperation of the national and local authorities,
facilitatethe proper working of al1institutions devotedto the care and education of
children."
It is impossibleto reconcile Israel's actions against schoolsand children with these provisions.E/CN.4/2002/32
page 18
XII. CHILDRENAND THE ADMINISTRATIONOF JUSTICE
48. Israel is proud of itsjudicial system and administration ofjustice. As a nation, Israel is
committed to the rule of law and to due process of law in criminal proceedings. There are,
however, serious doubts as to whether this commitment extends to the Palestinian Territory, and
particularly to the treatment of Palestinian children in thejustice system. Consultations with the
principal Palestinian, Israeli and international non-governmental organizations working in this
field, the study of their carefully prepared reports, backed in some instances by affidavits from
their victims, and interviews with several children who were detained, interrogated and
imprisoned, reveals an alarming pattern of inhumantreatment of children under the military
justice system inthe Palestinian Territory. The Special Rapporteur would have preferred to
discuss this matter with the Israeli authorities before reporting on it. Unfortunately, the
Government of Israel has elected not to cooperate with the Special Rapporteur. In these
circumstances, the Special Rapporteur has no alternative but to raise the issue as a prima facie
case of inhumantreatment to which the Government of Israel should respond.
49. According to the evidence, about 1,000children under the age of 18have been arrested
and detained since September 2000 in connectionwith crimes relating to the Palestinian
uprising. Most -over 90 per cent - have been arrested on suspicion of throwing stones at Israeli
soldiers, which carries a maximum penalty of 6 months' imprisonment for a childbetween 12
and 14,and 12months' imprisonment for a child between 14and 16. Children are tried in Israeli
military courts. Thereare no military courts orjudges designated especially for children, no
officers trained specifically for the interrogation of children, no probation officers and no social
workers to accompany them. At present about 150children are in detention or prison.
50. The evidence indicatesthe following pattern of arrest, interrogation, detention,
sentencing and imprisonment. Arrests occur late at night with the maximum disturbance to the
family, and children are often assaulted in the process of arrest and on the way to detention
centres. Interrogation in orderto secure a confession continues for several days and is
accoinpanied by beating, shaking,threats, sleep deprivation, isolation, blindfolding and
handcuffing. Detainees are forcedto sit or crouch in painful positions ("shabeh"), doused with
cold water in winter, and shotat with toy pistols with plastic pellets from close range. Their
heads are placed in the toilet and the toilet flushed. Detainees are not permitted to see their
lawyers at this stage. Interrogation accompanied by treatment of this kind may continue for
several daysuntil a confession is obtained. The Israeli SupremeCourt, in its 1999decision
outlawing physical methods of interrogation, accepted that inhumanmethods of interrogation
qualiQing as torture might be employed in a case of "necessity" -where it is imperative to obtain
information urgently aboutthe "ticking bomb". This alleged exception to the prohibition on
torture is clearly inapplicable where the aim of the interrogation is not to extract information
about a ticking bomb but about stone-throwingby children.
51. Following interrogation, children are often detained for several months awaiting trial.
When tried they are sentenced to several months in prison: usually between 7 and 12months in
the case of children over 14. In addition, they are usually fined about US$250. They are
imprisoned in Israel itself, which makes visits by family and Palestinian lawyersextremely
difficult as special permission must be obtainedto enter Israel. (Visits arranged by the E/CN.4/2002/32
page 19
International Committee of the Red Cross were suspended for several months but have recently
been resumed.) These child "political prisoners" are imprisonedwith common criminals and
complain of assaults perpetrated by both prison guards and common-law prisoners.
52. Complaints about inhumantreatment to medical doctors (both in detention centres and in
prison) and to the trialjudges in the military courts are generally not investigated or taken
seriously.
53. The inhuman treatment ofjuvenile offenders described above falls short of international
standards contained in the Convention on the Rights of the Child (art. 37), the Convention
against Torture and Other Cruel, Inhuman and DegradingTreatrnent or Punishment (arts. 1, 16),
the StandardMinimum Rules on the Treatment of Prisoners of 1957and the Fourth Geneva
Convention (arts. 27, 3 1,32, 76). These are serious allegations which require a serious response
froin the Israeli authorities. The SpecialRapporteurrecommends that the Israeli authorities
conduct a thorough investigation into these allegations (detailed more fully in reports of
non-governmental organizations) carried out by an independentbody outside the military, police
and prison services. At the same time, immediatesteps should be taken to transfer those
imprisoned in Israel to prison facilities in the occupiedterritory (as required by article 76 of the
Fourth Geneva Convention) that complywith internationalstandards relating to the
imprisonment of children. It is also recommendedthat the military authorities appoint an Israeli
judge or other independent Israeli criminaljustice expert outside the military to visit detention
centres to monitor interrogations and the treatment ofjuveniles in detention centres before they
are brought to trial.
XIII. CONCLUSIONSANDRECOMMENDATIONS
54. The parties to the conflict are themselves either incapable of or unwilling to bring the
violence in the Occupied PalestinianTerritory and Israel to an end. In these circumstances, the
need for an international presence, either in the form of monitors or peacekeepers, is surely
imperative to reduce violence, restore respect forhuman rights and create conditions in which
negotiations can be resumed. (See further, paragraph 22 above.)
55. International humanitarian law andhuman rights noms have been seriously violated in
the present conflict by both parties. Both Israelis and Palestinians should make every endeavour
to respect the rule of law, human rights and humanitarian law. Targeted killings of selected
Palestinians by guided missiles, terrorist bombings in Israel,the demolition of homes in the
Palestinian Territory and the indiscriminatekilling of civilians by both sides must cease.
56. Israel's restrictionson freedom of movement,resulting fiom checkpoints, have caused
great personal, social and economic hardshipsto civilians in no way involved in the conflict.
They constitute collective punishment of the kindprohibited by article 33 of the Fourth Geneva
Convention. Moreover, sufficientdoubtshave been cast on both the purpose and the
effectiveness of checkpoints as a means of promoting securityto warrant a serious
reconsideration of their retention by the Govemment of Israel.E/CN.4/2002/32
page 20 .
57. Settlements are an ever-visible andaggravating sign of occupation andof Israel's illegal
conduct as an Occupying Power. Ttis not enoughmerely to impose a freezeon settlements.
Stepsmust now start to dismantle settlements.
58. Children have suffered greatlyin the present crisis. Every effort shouldbe made bythe
Israeli military authorities tonsurethat the safety andwelfare of schools and schoolchildrenare
respected. It isfurtherrecommendedthat an investigation be conducted intoallegationsof
inhumantreatment of childrenunderthe militaryjustice system and that immediatestepsbe
taken to remedy this situation. (Seethe recommendations containedinparagraph 53on this
subject.) ANNEX 3
Report of the SpecialRapporteur of the ComonsHuman
Rights on the situation of human rights in the Palestinian territories
occupiebyIsrael since 1967,
29August 2002A1571366 UnitedNations A1571366
GeneralAssembly Distr.: General
29 August 2002
kA ,&
Original: English
Fifty-seventh session
Item 111(c) of the provisional agenda*
Human rights questions: human rights situationsand
reports of special rapporteurs and representatives
Question of the violation of human rights in the occupied
Arab territories, including Palestine
Report of the Special Rapporteur of the Commission on Human
Rights on the situation of human rights in the Palestinian
territories occupied by Israel since 1967
Note by the Secretary-General**
The Secretary-General has the honourto transmit to the rnembers of the
General Assembly the interim report on violations of international humanitarian
and huinan riglits in the Palestinian territoriessince 1967, subinitted by
John Dugard, Special Rapporteur,pursuant to Commission on Human Rights
resolutions199312, section A, and 200218 and Economic and Social Council
decision 20021243.
* Al571150.
** In accordance with General Assembly resolutioIIIpara. 10, the present report 1s
being submitted beyond the 2 July deadline so as to include as inuch updated information as
~ossible and the decision of the Economic and Social Council.
02-56551(E) 241002
"0256557 *Executive summavy
In the past several months, violence has escalated in both the Occupied
Palestinian Territory and Israel. Israel has effectively reoccupied the Occupied
Palestinian Territory and the peace process has completely stalled. Human rights and
international humanitarian law have suffered drastically in the process.
Civilians are the main casualties of the conflict. Both Israel and Palestine have
ignored the basic principles of distinction and proportionality in their actions against
or involving civilians. Palestinian groups have been responsible for an increased
number of suicide bombings in Israel and for the killing of settlers. The Israel
Defense Forces (IDF) have been responsible for a heavy loss of life in their military
incursions, particularlyin Nablus and Jenin, and rocket attacks on militants. Many of
those killed in both Israel and Palestinehave been children.
IDF incursions in the West Bank have resulted in large-scale arrests and
detentions. Detainees have been treated in an inhuman and degrading manner,
sometimes constituting torture. These incursions have been characterized by a
massive destruction of property, estimated by the World Bank at $361 million.
Closures, checkpoints and curfews have destroyed freedom of movement for
Palestinians, with disastrous consequences for human freedom, health. welfare and
education.
Illegal settlements have continued to grow. Moreover, there is now a plan to
build a fence or zone between Israel and the Occupied Palestinian Territory, which
will result in a further annexation of Palestinian territory.
Fundamental norms of human rights law and international humanitarian law
have been violated on a large scale. The destruction and disruption of the civil
administration in the West Bank have serious implications for both the Palestinian
people and the rule of law. Under the law. Israel, as the occupant. is obliged either to
assume responsibility for civil administration itself or to permit the Palestinian
Authority to carry out its functions properly. In terms of the Fourth Geneva
Convention, al1State Parties are required toensure that this happens.Contents
1. Introduction ...............................................
I. Human rights and terrorism ...............................
III. Civilians: victims of the conflict .............................
IV. Detentions. inhuman treatment and cliildren .....................
v . Curfews. checkpoints and reoccupation of Palestine .......................
VI. Destruction of property ................................................
VI1 . Territorial integrity of the Occupied Palestinian Territory ....................
A . Settlements .....................................................
B . Fencesandbufferzones ...........................................
The occupation from the perspective of international human rights and
international humanitarian law .........................................
A . Violations of human rights .........................................
B. Violation of international humanitarian law ..........................
C . Civil administration in a state of occupation ..........................
Concludingremarks ........................................ 1. Introduction
1. On 26 March 2002, the Special Rapporteur reported to the Commission on
Huinan Rights at its fifty-eighth session on the situation of hiiman rights in the
Palestinian territories occupied by Israel since 1967. That report was based largely
on a visit to the region in February 2002. Much has happened since then. Violence
has escalated in both the Palestinian Territory and Israel, Israel has effectively
reoccupied the Palestinian Territory and the peace process has completely stalled.
Both the Security Council and the General Assembly have adopted resolutions, but
to littlevail.' The present report makes no attempt to give a full account of the
events of the past few months or of the failed attempts to restore peace in the region,
which are matters of public record that have received wide coverage in the media
(see also AIES-101186). Instead, it focuses on the principal violations of human
rights and international humanitarian law. Inevitably, much will happen in the
Occupied Palestinian Territory between the writing of the present report and its
presentation. An addendum will therefore be submitted later, based on a visit to the
region planned for late August.
II. Human rightsand terrorism
2. Since 11 September 2001, the response to terrorism has dominated the world's
agenda and the protection of human rights has been reduced in importance. This is
unfortunate as it is clear that the promotion and protection of human rights is the
most effective method of combating terrorism. The relationship between terrorism
and human rights is nowhere more evident than in the Middle East, where the
violation ofhuman rights in the Occupied Palestinian Territory has produced acts of
terrorism in Israel, violating the most basic right to life, and this in turn has led to
acts of military terror in the Occupied Palestinian Territory. with the inevitable
suppression of basic human rights. In this situation, it serves little purpose to
apportion immediate blame. It is far wiser to acknowledge that violations of human
rights are a necessary consequence of military occupation and to address ways of
ending this situation so that the cycle of violence is replaced by the increasingly
difficult. butncreasingly necessary. quest for peace and security.
III. Civilians:victims of the conflict
3. Civilians inevitably are the main casualties of armed conflict and civil strife.
International humanitarian law seeks to limit harrn to civilians by requiring that al1
parties to a conflict respect the principles of distinction and proportionality. The
principle of distinction, codified in article8 of the First Additional Protocol to the
Geneva Conventions of 1977, requires that parties to the conflict shall "atal1 times
distinguish between the civilian population and combatants and between civilian
objects and military objectives and accordingly shall direct their operations only
against military objectives". Acts or threats of violence, the primary purpose of
which is to spread terror among the civilian population, are prohibited (article
51 (2)). The principle of proportionality codified in article 51 (5) (b) prohibits an
attack on a military target which may be expected to cause incidental loss of civilian
life,in-jury to civilians and damage to civilian objects which would be excessive in
relation to the concrete and direct military advantage anticipated. That these principles apply to both Israelis and Palestinians was confirmed by the High
Contracting Parties to the Fourth Geneva Convention when, in a statement issued on
5 Deceinber 2001, they called on both parties to the conflict to:
"ensure respect for and protection of the civilian population and civilian
objects and to distinguish at al1 times between the civilian population and
combatants and between civilian objects and military objectives. They also cal1
upon the parties to abstain from any measures of brutality and violence
against the civilian population whether applied by civilian or military agents
and to abstain from exposing the civilianpopulation to military operations".
Sadly, neither party to the conflict in the region has paid proper respect to these
principles as the death toll has continued to rise. Since the start of the second
intifada in September 2000, a total of 1,700Palestinians and 600 Israelis have been
killed. Most have been civilians.
4. Within Israel, most deaths have been caused by suicide bombers who have
carried their lethal weapons of destruction on to buses and into busy shopping
centres. Despite condemnation from the Palestinian Authority and prominent
Palestinian community leaders - and the international community - tliis
instrument of terror, which shows no regard for either the principle of distinction or
that of proportionality. continues to be used by paramilitary Palestinian groups.
5. The Israel Defense Forces (IDF), presuinably well educated in the rules of
international humanitarian law, have likewise shown little regard for the principles
of distinction or proportionality. Recent military incursions into the West Bank and
the reoccupation of Palestinian towns and cities have resulted in heavy loss of
civilian life. That was nowhere more apparent than in Operation Defensive Shield.
in March and April 2002, in which the refugee camp of Jenin and the city of Nablus
were subjected to heavy bombardment from air and land before IDF troops entered,
employing bulldozers to facilitate their movement and allegedly using Palestinian
civilians as human shields against snipers. Of the 80 persons killed in Nablus, 50
were civilians, and of the 52 killed in Jenin, 22 were civilians. Since November
2000, the IDF has targeted and killed a number of selected militants in precision
bombings. These assassinations have often been carried out, ho\vever. with no
regard for civilians in the vicinity. Of the 165 persons killed insuch actions, at least
one third have been civilians. A recent incident starkly illustrates the manner in
which such attacks have sometimes been made. On 22 July, the IDF carried out a
late night air strike, aimed at Hamas military leader Salah Shehada while he was in a
densely populated residential area of Gaza City. which killed 15 persons (including
9 children) and injured over 150 others.
6. Many of the civilians killed have been children. In 2002, over 100 children
have been killed, not in crossfire between Palestinian and Israeli forces, as is usually
believed, but mainly when the IDF has randomly opened fire or shelled civilian
neighbourhoods. Over 20 children have been killed "collaterally" in the course of
the assassination of militants.
IV. Detentions, inhuman treatment and children
7. The assaults on Palestinian towns in March and April in Operation Defensive
Shield and subsequent military operations in the West Bank have resulted in massive arrests and detentions. In the period between 29 March and 5 May alone, some
7,000 Palestinians were arrested, of whom 5,400 had been released by that date.' In
inany towns and refugee camps, al1 males between the ages of 16 and 45 were
arrested. Most were held for several days only. Arrests of this kind constitute a form
of collective punishment as in most instances there has been no regard for the
personal responsibility of those arrested. In many cases, arrested persons have been
subjected to humiliating and inhuman treatment. They have been stripped to their
underpants, blindfolded, handcuffed, paraded before television caineras, insulted,
kicked, beaten and detained in unhygienic conditions. Those not released are held
without trial or access to a lawyer. Some are held in administrative detention;others
are held in terms of Military Order 1500, issued on 5 April to permit lengthy
detention of those arrested since 29 March. Military Order 1500 authoiizes
incommunicado detention for up to 18 days - which may be renewed for up to 90
days. There are widespread allegations of torture, consisting of sleep deprivation,
severe beating, heavy shaking, painful shackling to a small chair, subjection to loud
noise and threats of action againstfamily members.
8. In my report of 6 March to the Commission on Human Rights
(E/CN.4/2002/32), 1 drew attention to serious allegations of inhuman treatment and
torture, of thekind described in the preceding paragraph, of juveniles detained and
imprisoned for political offences, particularly throwing stones at members of the
IDF. 1 stressed that such treatment violated important norms of international law
contained in the Convention on the Rights of the Child (art. 37). the Convention
against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment
(arts.1, 6) and the Fourth Geneva Convention (arts. 27, 31, 32, 76). 1 accordingly
called upon the Israeli authorities to conduct a thorough investigation into those
allegations (detailed fully in the reports of non-governmental organizations) carried
out by an independent body outside the nlilitary, police and prison services.Sadly,
no such action has been taken. On the contrary, the position of children has
deteriorated still further. It is estimated that between 10 and 15 of the thousands
recently detained are children.' Moreover, there is evidence that many have been
subjected to the same humiliating and inhuman treatment (sometimes amouiiting to
torture) asadults, described above.
V. Curfews, checkpoints andthe reoccupation of Palestine
9. Since the start of the second intifada, in September 2000, Israei has imposed a
stranglehold on the lives of Palestiniails by ineans of restraints on freedoin of
inoveinent. First came the closure of international borders and the sealing off of
Gaza froin the rest of the Palestinian Territory. Second came the erection of 120
checkpoints on roads in the West Bank. Third, in 2002, came the curfew, not of a
town or neighbourhood, but of a substantial portion of the nation. It is these
measures, vigorously enforced by the IDF, which constitute the reoccupation of the
Palestinian Territory.
10. The IDF operation "Determined Path", commenced in mid-June, has resulted
in the reoccupation of seven of the eight major West Bank urban centres and
adjoiiiing refugee camps and villages. Between 18 and 25 June, curfews were
imposed on Jenin, Qalquiliya, Bethlehem, Nablus, Tulkarem, Ramallah and Hebron.
That has subjected over 700,000 persons to a regime similar to house arrest which
confines them to their homes, except every third or fourth day wheii the cuifew is lifted for several hours to allow residents to obtain essential supplies.The curfew is
strictlyeiiforced by the IDF and there have been many incidents of shooting of
civilians who had failed to observe the curfew.
11. That reoccupation by closure and curfew has affected every feature of
Palestinian life. There have been shortages of basic foodstuffs; interference with
inedical services by the denial of access to doctors and hospitals; interruption of
family contacts; and stoppages of education (at a particularly important time - that
of end-of-year exaniinations). Municipal services, including water, electricity,
telephones, and sewage removal have beeii terminated or interrupted; and the IDF
has denied permission to repair damaged municipal service supply units. There has
also been a near complete cessation of productive activity in manufacturing,
construction and commerce as well as private and public services, which has had
serious consequences for the livelihood of most of the population. Inevitably, tlie
incidence of poverty has increased dramatically. In May, the World Food
Programme estimated that food aid was a priority need for 620.000 Palestiniaiis in
the West Bank and Gaza.
12. No one is exempt from the curfew. Chairman Arafat himself has been confined
to his compound in Ramallah and his supplies of electricity and water have been
intermittently cut off.
VI. Destruction of property
13. The assaults on cities in the West Bank in Operation Defensive Shield, from 29
Marcli to 7 May, left devastation in their wake. In Jenin, 800 dwellings were
destroyed and many more damaged, leaving over 4.000 people homeless. Losses
were estimated by tlie World Bank at $83 million. In Nablus, there was extensive
damage to the old city, including religious and historic sites. Repair costs have been
estimated by the World Bank at $114 inillion. Refugees were the hardest hit. In the
military offensives of 27 February to 17 March and 29 March to 7 May, over 2,800
refugee housing units were damaged and 878 homes destroyed or deinolished,
leaving 17,000 persons homeless or in need of shelter rehabilitation. The World
Bank estiniates that Operation Defensive Shield caused physical damage amounting
to $361 million in the West Bank as a whole, coinpared with the $305 million
caused by damage in the first 15 months of the intifada.4 Private businesses suffered
the most ($97 million), followed by housing ($66 million), roads ($64 million) and
cultural Iieritage sites ($48 million).
14. In the past, there has often been a disciplined, retributive approach to the
destruction of property. For instance, the houses of suspected iililitants have been
deinolished in a clinical display of collective punishment - a practice that
continues to this day. The destruction of property in Operation Defensive Shield,
however, had a wanton character that surprised even the harshest critics of the IDF.
In many houses entered by the IDF, soldiers broke holes into the walls in order to
reach neighbouring houses. Soinetimes, holes were made from one apartment to
another where it was possible for soldiers to have entered from a veranda or
window. Worse still, tliere were reports of systematic trashingof homes, of wanton
destruction of televisions and computers in homes, schools and office buildings and
of looting.'VII. Territorialintegrity of the Occupied Palestinian Territory
A. Settlements
15. The international coinmunity is united in its categorization of Jewish
settlements in the West Bank and Gaza as contrary to article 49 (6) of the Fourth
Geneva Convention, which prohibits an occupying power from transferring parts of
its own civilian population into the tersitory it occupies. In numerous resolutions.
the Security Council and the General Assembly have condemned the settlements as
illegal and, in their Declaration of 5 December 2001, the High Contracting Parties to
the Fourth Geneva Convention reaffirmed that position.
16. Today, there are some 190 settlements in the West Bank and Gaza, inhabited
by approximately 390,000 settlers, of whom some 180,000 live in the East
Jerusalein area. Settlements are linked to each other and to Israel by a vast systein of
bypass roads that have a 50- to 75-metre buffer zone on each side in which no
building is permitted. These settlements and roads, which separate Palestinian
communities and deprive Palestinians of agricultural land, have fragmented both
land and people. In effect. they foreclose the possibility of a Palestinian State as
they destroy the territorial integritof the Palestinian Territory.
17. The relationship between settlers and Palestinians is an unhappy one and each
side views the other with hostility, anger and suspicion. Protected by the Israeli
inilitary, and exempt from the jurisdiction of the courts of the Palestinian Authority,
settlers have committed numerous acts of violence against Palestinians and
destroyed Palestinian agricultural land and property. Since the beginning of the
second intifada, incidents of settler violence have dramatically increased. Palestinian
Iiostility towards settlershas grown alarmingly since the start of this intifada and
inany of the Israelis killed in the current conflict have been settlers or soldiers
charged with the task of protecting settlements and roads leading to settlements. ln
the past few months, acts of terrorism against settlers have escalated as Palestinian
militants have attacked settlements or buses en route to settlements.
18. Despite threats to the life and security of settlers, the Government of Israel has
made no attempts to reduce the nuinber of settlers. Indeed, it has refused to psovide
them with assistance in returning to Israel and lias encouraged them to stay on
settlements by continuing to offer cheap housing, discounted loans and tax
incentives.'
19. Assurances by the Government of Israel that it will limit the growth of
settlements cannot be reconciled with the facts. Settlements have continued to
increase. mainly by ineans of informa1 "outposts" established in the proximity of
existing settlements. officially tolerateif not officially authorized;and by means of
the construction of new housing units in existing settleinents.Since February 2001,
a total of44 "outposts" have been constructed, according to Peace Now, the Israeli
peace and human rights movement. In July 2002, steps were talcen to destroy some
of the smallest, unpopulated outposts, a step castigated by YESHA, the settlers'
association, as an encouragement of terrorism. Politically, settlers wield
considerable power within the Israeli body politic and this enables thein virtually to
dictate policy to the Government. B. Fences and buffer zones
20. The failure to prevent Palestinian suicide bombers froin reaching their targets
in Israel has led to a new strategy on the part of the Government of Israel. This is
the construction of a 360-kilometre security fence or zone comprising ditches,
barricades, walls, monitored electrified fences and patrol roads to separate Israel
from Palestine. The exact course and breadth of the fencelzone is uncertain but it is
clear that it will not carefully follow the existing Green Line marking the pre-1967
borders between Israel and Jordan. Instead, it will encroach further on Palestinian
territory by establishing a buffer zone several kilometres wide within Palestine and
by incorporating settlements near to the Green Line. Moreover, it will incorporate
East Jerusalem and neighbouring settleinents. such as Ma'ale Aduinim into Israel.
This unilateral redrawing of the border in the name of security is simply a pretext
for the illegal annexation of Palestinian territory.
VIII. The occupation from the perspective of international human
rights and international humanitarianlaw
21. Speaking to the Security Council on 12 March 2002, the Secretary-General,
Kofi Annan, called upon Israel to end its "illegal occupation" of the Palestinian
Territory. Asked to explain why he used the term illegalto describe the occupation
of the Palestinian Territory, he replied that "the Security Council and the General
Assembly have both at various occasions declared aspects of Israeli occupation as
illegal". He noted, in particular,the building of settlements. the annexation of East
Jerusalem and recent events in the region. The coininents of the Secretary-General
underscore the fact that it is by the law of occupation that Israel's conduct must be
judged and that many of its practices violate basic principles of that governing law.
22. The governing body of law is to be found in the Hague Regulations of 1907,
the Fourth Geneva Convention of 1949, and international human rights conventions
on civil and political rights, social, economic and cultural rights and the treatment of
children, as supplemented by customary international law. That international human
rights law forms part of the law of occupation is clear from article 27 of the Fourth
Geneva Convention, which provides that the occupying power is to respect the
fundamental rights of protected persons. According to the coininentary of the
International Committee of the Red Cross on this provision: "The right to respect for
the person inust be understood in its widest sense: it covers al1 the rights of the
individual, that is, the rights and qualities which are inseparable from the human
being by the very fact of his existence and his mental and physical powers; it
includes. in particular, the right to physical, moral and intellectual iiitegrit- an
essential attribute of the human person" (p. 201). The "rights of the individual" have
been proclaimed, described and interpreted in international human rights
instruments, particularly the international covenants on civil and political rights, and
economic. social and cultural rights of 1966, and in the jurisprudence of their
inonitoring bodies. These human rights instruments therefore complement the
Fourth Geneva Convention by defining and giving content to the rights protected in
article 27. This is borne out by the Vienna Declaration adopted by the World
Conference on Human Rights in 1993, which states that: "Effective international nzeasures to guarantee and nionitor the
implementation of human rights standards should be taken in respect ofpeople
under foreign occupation, and effective legal protection against the violation
of theirhunzan rights should be provided, in accordance with hunlan rights
norms and international law, particularly the Geneva Convention relative to
the Protection of Civilian Persons in Time of War, of 14 August 1949, and
other applicable norms of humanitarian law."
A. Violations of human rights
23. The most basic and fundamental rights have been violated in the course of the
conflict in both the Occupied Palestinian Territory and Israel itself. The right to life,
upon which al1 rights depend, has suffered dramatically as a result of terrorist
suicide bombings in Israel, attacks on settlers in the Occupied Palestinian Territory
and violence against Palestinians by the IDF, including acts of terrorism,
assassination, military incursion and the shooting of civilians. The right to human
dignity, freedom from torture and arbitrary arrest and the right to a fair trial have
been violated on a large scale by Israeli military interventions in the West Bank.
Freedom of movement has been completely destroyed for Palestinians by closures,
checkpoints and curfews; and the right to property has been dramatically
undermined by military offensives. Economic, social and cultural rights have
likewise suffered. Curfews. checkpoints and the destruction of housing have
violated articles 11 to 13 of the 1966 International Covenant on Economic, Social
and Cultural Rights, which together recognize the right of everyone to an adequate
standard of living, including adequate food, clothing and housing, to the enjoyinent
of the highest attainable standard of physical and mental health, and to education.
Sadly, many of the provisions of the Convention on the Rights of the Child have
been violated. These include the right to life, to health care. to a standard of living
adequate for the child's physical, mental. spiritual, moral and social development. to
education, to freedom from torture, inhuman treatinent and arbitrary arrest, and to a
fair trial aswell as the obligation on States to "ensure to the maximum extent
possible the survival and development of the child" (article 6 (2)).That Convention,
moreover, requires States, in accordance with their obligations under international
Iiumanitarian law, "to ensure protection and care of cliildren who are affected by an
armed conflict" (article 38(4)).
B. Violations of international humanitarian law
24. Many of the most basic principles of international humanitarian law have also
been violated. As shown in paragraphs 3 to 6 above, neither party to the conflict has
sliown respect for the principles of distinction and proportionality in their actions
against or affecting civilians. The prohibition on collective punishment "and
likewise al1 measures of intimidation or of terrorism" contained in article 33 of the
Fourth Geneva Convention has been violated in many ways by the IDF, including by
the destruction of property, curfews, and the arrest ofl1men between the ages of 16
and 45. The wanton destruction of property carried out as part of Operation
Defensive Shield, particularly in Nablus and Jenin, cannot be reconciled with article
53 of the Convention, which prohibits the destruction of property "except where
such destruction is rendered absolutely necessary by military operations".C. Civil administration in a state of occupation
The law governing occupation, reflected in international custom, the Hague
25.
Regulations of 1907 and the Fourth Geneva Convention, is designed to ensure that,
notwithstanding the security needs of the occupying power, the day-to-day lives of
civilians in an occupied territory will continue normally. In today's world, this
ineans that civilians must have adequate food. shelter, electricity and water; that
municipal services such as garbage and sewage removal will continue; that the sick
will have access to proper medical care; and that education will not be obstructed.
26. There is no single rule of international law that specifically States that a
belligerent occupant is responsible for the civil administration of an occupied
territory. There are. however, two sources of law that create such a responsibility:
first, article43 of the Hague Regulations and, second, provisions of the Fourth
Geneva Convention. Article 43 is brief and fails to detail the obligations of the
occupying power. It simply provides that:
"The authority of the legitimate power having in fact passed into the hands of
the occupant, the lattershall take al1the measures in his power to restore, and
ensure, as far as possible, public order and safety, while respecting, unless
absolutely prevented, the laws in force in the country."
The reason for the failure to spell out the duties of the occupant is that in 1907 "the
establishment of a system of administration by the occupant was widely accepted in
practice ...as inandatory".'
27. The Fourth Geneva Convention complements this provision by imposing
obligations on the occupant to ensure "the food and inedical supplies of the
population" and to "bring in the necessary foodstuffs, medical stores and other
articles if the resources of the occupied territory are inadequate" (article 55); to
ensure and inaintain "the inedical and hospital establishments and services, public
health and hygiene in the occupied territory" (article 56); and to facilitate "the
proper working of al1 institutions devoted to the care and education of children"
(article 50). Obligations to provide postal services, telecommunications and
transport and to maintain public welfare institutions may also be inferred from the
Fourth Geneva Convention and the Hague ~e~ulations.~ Together, these provisions
amount to an obligation on the occupant to establish an adequate civil administration
in an occupied territory.
28. Jn terms of the Oslo Accords. the responsibility for civil administration in the
West Bank and Gaza was transferred to the Palestinian Authority. Today, however,
the identity of the authority responsible for thecivil administration of the West Bank
and Gaza is not so clear. The military operations of 2002 have effectively destroyed
inuch of the infrastructure of the Palestinian Authority. Electricity and water
supplies have been cut, municipal services terminated, access to food denied, health
care obstructed and education seriously interrupted. Does this mean that Israel is
now obliged to assume responsibility for the civil administration of the Occupied
Palestinian Territory?
29. Although Jsrael has announced that it anticipates a prolonged occupation of the
Palestinian Territory, it clearlydoes not intend resuining responsibility for the civil
adininistration of the territory.' Rather than do this, it is considering handing over
some of the $600 million due to the Palestinian Authority for customs' duties and tax it has blocked since September 2000.'~ Similarly, the Palestinian Authority,
despite coinplaints that Israel has de facto scrapped the Oslo Accords, is
understandably unwilling to conteinplate surrendering the power of civil
administration to Israel.
30. The current situation is untenable. Israel cannot, in terms of international
humanitarian law, deny the Palestinian Authority the capacity to provide an
adequate and functioning civil administration, and at the same time refuse to accept
any responsibility for such an administration itself. In law, it is obliged either to
assume this responsibility or to permit the Palestinian Authority to provide the
services that comprise an adequate civil administration. There is a heavy burden on
al1 parties to the Fourth Geneva Convention to take measures to ensure the
restoration of a proper civil administration in the Palestinian Territory in accordance
with their obligation under article 1 of the Convention "to ensure respect" for the
Convention "in al1circumstances".
IX. Concluding remarks
31. The Occupied Palestinian Territory is a testing ground for human rights
and humanitarian law. The great advances in these two bodies of law are
undermined by a situation in which human rights and humanitarian law are
denied and disregarded with no meaningful respouse from the international
community. The rule of law is one casualty of the conflict in the Occupied
Palestinian Territory, but the main casualties are the people of Palestine and of
Israel.
Notes
See Security Council resolution1397 (2002), 1402 (2002) and 1405 (2002) as well as General
Assembly resolution ES-10/10.
Stateincnt by the State Attorney's Office to the Israeli SupCourt: HCJ 3239/02 Iyyad Ishaq
Mahmud Mar 'ab et al v.Commander of IDF Forces in the Judea and Samaria Area. Response
by the Respondent, 5 May 2002, para. 14.
See the report on Israeli Practice towaPalestinianCliildren submitted by Defense for
Children InternationalPalestine Sectionto the Committee against Torture, May 2002.
' InternationalHerald Tribune, 16May 2002
' Amnesty International,Israel and the Occupied Territories: THeaiy Price of Jsraeli
incursions, 12 April 2002.
"ee furtlier, B'Tselem, Land Grab: Israeli Settlement Polis> in the West Bank, 2002.
E. Benvenisti, The International Law ofoccupation(1993), pp. 4-5.
M. Greenspan, The Modern Law ofLand Warfare (1959), pp. 230-235.
See the statements by Mr. Ben-Eliezer, Minister of Defencand Major General Amos Gilad
reported in the International Herald Tribune, 24 June.
IO
InternationalHerald Tribune, 23 July. ANNEX 4
Report of the SpecialRapporteur of the Commission on Human
Rights on the situation of human rights in the Palestinian territories
occupiedby Israel since 1967,Addendum,
16September 2002, Al571366lAdd.1 Question of the violation of human rights in the occupied Arab territories, Page 1of 4
UNITED
NATIONS
General Dist..
GENERAL
Assembly Al571366lAdd. 1
16 September 2002
Original: ENGLISH
Fifty-seventh session
Item 111(c) ofthe provisionalagenda*
Humanrights questions: human rights situations and
reports of special rapporteurs andrepresentatives
Question ofthe violation of hurnanrights inthe occupiedArabterritories,includingPalestine
Report ofthe SpecialRapporteurofthe Commissionon Human Rights on the situationof human rights in the
Palestinianterritories occupied by Israele 1967
Addendum
Note by the Secretary-General
The Secretary-Generalhas the honour to transmit tothe members of the GeneralAssemblythe report of the Special
Rapporteuron his visit to the OccupiedPalestinian Temtory and Israel, from25 to 30August 2002.
Summary
5-
Y.. 1.As indicated in his main report to the GeneralAssembly (A/57/366),the SpecialRapporteurrelates herewith his visit
to the Occupied PalestinianTerritoryat the end of August 2002.
2. The SpecialRapporteurvisitedthe OccupiedPalestinianTerritory and Israel from25 to 30 August.ng that period,
he paid field visits to Nablus and Jenin, wherehe inspectedthee causedby OperationDefensive Shield, and to
Qalquiliya,where he sawthe start of the great Wall of Separationbetween Israeland Palestine. He also visited Ramallah,
Bethlehem and Jericho. The SpecialRapporteurmet with a wide range ofpeople: ChairmanYasserArafat and Mr. Sa'eb
Erekat, Minister ofLocal Govemment of the PalestinianAuthority; the govemor of Nablus andthe acting Govemor of
Jenin;the Mayor of Jenin;representativesofPalestinian, Israeli and intemationalnon-govemmentalorganizations; and
members of internationalhumanitarian agencies.The visit servedto confirm theaccuracyof the account of the situation
described in the mainreport. However,the SpecialRapporteurbelieves that the seriousnessofthe situation was
understated in that report. The persona1encounterwith curfews,the devastated Jeninrefugee camp,the badly damaged
old city ofNablus, checkpoints where Palestiniansare dailyhumiliated, ChairmanArafat'slargelydestroyed compound
and interlocutors who told of their own suffering and those of others, transformedan intellectualappreciation of a
humanitarian crisis into an emotional awarenessofthe hurnantragedy that isunfolding in Palestine.
3. Thepresent addenduin will not addtol1the topics raised in the main report. Instead,it will focus on curfews and
closures and their consequences;detentions;collective punishment;children;Settlements;and the funding of the
humanitarian crisis.Question ofthe violation ofhuman rights in the occupied Arab territories, Page2 of 4
Securityand human rights
4. Beforeturning to these issues it isnecessaryto say somethingabout Israel'ssecuriîy needs and interests. There can be
no doubtthat Israel has legitimatesecurity concerns. Waves of Palestiniansuicidebombers have inflicted deep wounds
on Israeli society. Israelhas both a right and an obligationto protect its people frofurther attacks. At the sametime, it
is necessary to ask whether themeasuresresorted to by Israel, particularly curfews and closures, always serve a security
need. Often they appear so disproportionate, so remote fromthe interestsof security,that one is led to ask whether they
are not in part designedto punish,humiliate and subjugatethe Palestinian people. Israel'slegitimate securityneeds must
be balanced againstthe legitimatehumanitarianneeds of the Palestinian people.To the SpecialRapporteur it appearsthat
there is no such balance. Human rights havebeen sacrificed to security.This inturn produces a greater threat to Israeli
security:the hopelessness of despair which leads inexorablyto suicidebombings and other acts of violence against
Israelis.
Curfews,closures andtheir consequences
5. It is difficult to describecurfews ofthe kind experiencedinNablus andRamaIlah.Previously crowded, bustling cities,
full ofnoise, movement and colour,transformed into ghost towns, with the silence ofthe citybroken only by the
rumbling oftanks andthe sporadicgunfireof soldiers.Wholecities imprisonedbehind walls. An imprisonmentarbitrary
in its application as none can predict when itwill be lifted orwhen it mightbe reimposed; and brutal in its
implementationas many have been shot and killed for failingto observe the mies of the curfew. It is less difficult to
describe a military checkpoint. A group of young soldiers,with the arrogance of adolescence or its immediate aftermath,
in dusty uniforms with ominousrifles overtheir shoulders, enmisted with arbitrarypower over the movement of the
people of Palestine. Long lines of vehiclesorpeople presentingpapersto soldiersbehind concrete blocks, al1awarethat
their movement is completely in the hands of these young foreign soldiers.The arrogance of the occupier and the
humiliationof the occupied.
6. It is easier to describethe consequencesof curfews and closuresas they arebacked by hard statistics.The subjection
of over700,000persons in the main citiesto curfews, andthe denial of accessby the villagers to the cities, has resulted
inunemployrnent,poverty,malnutrition and illness. Over 50per cent ofthe population of the Palestinian Territory is
unemployed.Poverty, based on two dollars or less consumption per day,is at 70per cent in Gaza and 55 per cent inthe
West Bank. A total of 1.8 million Palestiniansreceive food aidor other formsof emergencyhumanitarian support ffom a
variety of sources, notablythe UnitedNations Relief and WorksAgency forPalestine Refugees inthe Near East,the
WorldFood Programme and the InternationalCommitteeofthe Red Cross. Twenty-two per cent of children under the
age of five suffer from acuteor chronicmalnutrition, while 20 percent sufferffom iron-deficiency anaemia. Mental
health problems have increasedalarmingly among children.Health care has suffereddrastically as a result of the
unavailability of medication andthe inabilityto reach health centres.As usual, the situation in the refugee camps is
particularlybleak, as was evident when the SpecialRapporteur visited the Balatarefugee camp near Nablus.
Detentions
7. The number of people subjectedto administrativedetention, that is lengthydetentionwithout trial, has increased from
lessthan 100to 1,860.Ofthe 7,000 detainees,some 300 are children and 50 are women (including eight girls).
Collectivepunishment
8. The demolition of thehomes of familiesas punishmentfor crimes committedagainst Israel by a fainily memberhas
longbeen an Israeli practice. In August, the Israeli High Court deniedjudicial review insuch cases, as had previously
been the position, thereby giving military commanderscomplete discretionto order the demolition of houses. This
clearly violates artic33 of the Fourth Geneva Conventionwhich prohibitscollectivepunishment.
9. On 3 September,the Israeli High Court issued a ruling allowing theforcibledeportation of two Palestinians fromtheir
home town of Nablus to the Gaza Stripon the ground that theyhad allegedly assistedtheir brother (extrajudicially Question of the violation of human rights in the occupied Arab territories, Page 3 of 4
executedby Israeliforceson 6 August) to commit attacks againstIsraelis.Althoughthe Court limitedsuch deportations
to "extreme cases", it must bestressedthat the decisionto deportwas not preceded by a trial to determinethe deportee's
complicity. The right to a fairtrial and the prohibitions on collectivepunishment(article 33 of the Fourth Geneva
Convention) and forcibletransfers (article 49 of the Convention)are violated by these measures.
Children
10.Children have sufferedgreatly as aresult of military incursionsintoPalestinianterritory and curfews and closures.
Many have been killed orinjured; some300 have been arrested and detained;over 2,000have been renderedhomeless;
two thirds live belowthe poverty line; 22 per cent of childrenunder the age of five sufferfiom malnutrition; at least
330,000have been confinedto their homesby curfew;over600,000havebeen prevented fiom attendingschools in the
West Bank; and most have beenseriouslytraumatized. During OperationDefensive Shield, 11schoolswere destroyed, 9
vandalized, 15employedas military outposts, 15used asdetentioncentres and 112damaged.Teachers,likepupils, have
often been unable to gain accessto their schoolsas a result of closures.Palestinian leaders expressedgreat concem to the
SpecialRapporteur aboutthe fate of schools, which opened on31August, inthe face of curfews.Treatrnent of this kind
leaves both physical and mental scars. Worse still,itbreedshatredforthe occupier, which augurs il1for the future.
Settlements
11.The main report contains factsaboutsettlements.Onthis visit,the SpecialRapporteur had the opportunity to see the
settlements inthe Nablus and Jenin districts.cha visit provides a clear explanationfor many of the closuresthat
obstruct Palestinian fieedom ofmovement and stranglePalestinian society. Small mountain-top settlements,with
populations of several hundred, are linkedto each other andto Israel itself by settlers-onlyroads. Palestinianroads that
cross these roads are sealedoff, with the result thatvillagers are oftencompelled to make lengthy detours to reach
markets, shops, workplaces,schools andhospitals in other villagesortowns. Outside Jenin, for instance,the two
settlements of Gannim (pop. 158)and Kaddim (pop. 148)are linked by a settlers-only road. The mainroad from Jenin to
eight villages with a combinedpopulationof some20,000 that previouslycrossed this roadhas been closed by
bulldozers. Villagers whopreviously were only a 10-minutedrivefrom Jeninmust now use circuitousvillage roads,
taking hours to reach Jenin.The basic freedomsofPalestiniansto movement andto a decent livelihoodare therefore
sacrificed in thenterestofthe security and comfort ofthe alien settlercommunity.The anger andhumiliation this
engenders amongPalestinians is impossibleto assess.
The paradox of humanitarian assistance
'K. 12.The gravity of the situation is indisputable. Soisthe need forhumanitarianassistance on a massivescale. If this is
not forthcoming, the Palestinianpeople will suffer irremediablehm. The SpecialRapporteurtherefore endorses, and
addshis own voiceto, calls for humanitarianassistance fiomthe internationalcommunity.
13.At the same time, it must be made clearthat, by providing aidofthis kind, the intemational donor community
relieves Israel of the burden of providing such assistanceitself andinthis way mightbe seento be contributing to the
fundingof the occupation.As is shown inparagraphs26 and27 of the main report, Israel itself is obliged, inrms of
articles 50, 55 and 56 ofthe Fourth GenevaConvention,to ensurethatthe Palestinianpeoplehave food and medical
supplies, to maintain medical services andto facilitatethe working of educational institutions.
HOME 1SITE MAP1SEARCH 1INDEX1DOCUMENTS 1TREATIES 1MEETINGS 1PRESS 1STATEMENTS
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Office of the UnitedNations High Commissioner for Human Rights
Geneva, SwitzerlandQuestion of the violation ofhurnanrights in the occupied Arab territories, Page 4 of4 ANNEX 5
Report of the SpecialRapporteur of the Commission on Human
Rights,Mr. John Dugard, on the situation of human rights in the
Palestinian territories occupied by Israel since 1967, submitted in
accordance with Commission resolutions 19312Aand 200218,
17December 2002, E/CN.4/2003/30 UNITED
NATIONS
Economicand Social Distr.
GENERAL
Council
E/CN.4/2003/3O
17Deceinber2002
Original: ENGLISH
COMMISSIONONHUMANRIGHTS
Fifty-ninth session
Item 8 of the provisional agenda
QUESTIONOF THE VIOLATION OF HUMANRIGHTS IN THE
OCCUPIED ARABTERRITORIES, INCLUDING PALESTINE
Report of the SpecialRapporteur of the Commission onRights,
Mr. John Dugard, on the situationof human rights in the Palestinian
territories occupied by Israel since 1967,submitted in accordancewith
Commission resolutions 199312A and 200218
GE.02-16000(E) 070103 ExecutiveSummary
In the past year the situation in the occupied Palestinianterritory (OPT) has deteriorated
substantially fiom the perspective of human rights. In large measure this is the result of repeated
military operations carried out by the Israel Defence Forces (IDF) in the West Bank and Gaza.
The IDFhasjustified its actions as self-defence and anti-terrorism measures. That Israel
has legitimate securityconcerns cannot be denied. That it is entitled to take strong action to
prevent suicide bombingsand other acts of terror is not disputed. On the other hand, there
must be some limitson the extent to which human rights may be violated in the name of
anti-terrorism. A balance must be struck between respect for basic human rights and the
interests of security. The principal balancing factor -proportionality - is the main focus of this
report.
Neither partyto the conflict in the region has paid properrespect to civilian life and the
death toll has continuedto rise. Since the start of the second intifada in September 2000,
over 2,000 Palestiniansand over 700 Israelis have been killed. Most have been civilians.
The IDFmilitary incursion of March to May, code-namedOperation Defensive Shield,
caused material devastation in inany cities - particularly Jenin and Nablus. This was followed by
Operation DeterminedPath in June which resulted in the reoccupation of seven of the
eight major cities inthe West Bank. Curfews imposedon Jenin, Qalquiliya, Bethlehem, Nablus,
Tulkarem, Ramallah and Hebron have subjected over 700,000 persons to a regime similar to
house arrest. The curfews are complemented by a systemof roadblocks and checkpoints which
have effectively divided the West Bank into some 50 separate "cantons", between which
movement is difficult and dangerous. The reoccupation has affected every feature of Palestinian
life. There have been shortages of basic foodstuffs; interferencewith medical services by the
denial of access to doctors and hospitals; interruption of farnilycontacts; and stoppages of
education. Unemploymenthas now reached over 50 per cent and 70 per cent of the population
live in poverty. In this situation there is a desperate need for humanitarian assistance. It has,
however, been suggestedthat such assistance in effect meansthat the international donor
community fundsthe military occupation.
Military operationshave led to widespread arrests and detentions.
Children have probably suffered most from the present conflict. Both Palestinian and
Israeli children have been exposed to threats to persona1safety, while Palestinian children have,
in addition, felt the breakdown of family life, health care and education.
Israeli territorial expansion has accelerated in the past year as a result of seizure of
Palestinian landto build a security wall and for the continued growth of settlements.
The report concludesthat it is difficult to characterize the Israeli response to Palestinian
violence as proportionalwhen it results in an excessive use of force that disregardsthe
distinction betweencivilians and combatants, a humanitarian crisis that threatensthe livelihood
of a whole people,the killing and inhuman treatment of children,the widespread destruction of
property and territorial expansion. CONTENTS
ExecutiveSummary
Introduction ....................................................................
1. HUMANRIGHTSANDTERRORISM ......................................
II. LOSSOF LIFEAND THEKILLINGOF CIVILIANS ..............
III. THE HUMANITARIANCRISISCAUSED BY
MILITARYOCCUPATION ........................................................
N. THEDILEMMAOFHUMANITARIANASSISTANCE ..........
V. DESTRUCTIONOFPROPERTY ...............................................
VI. DETENTIONS ................................................................
.......
VII. DEPORTATIONIASSIGNED RESIDENCE ..............................
VIII. CHILDRENINTHE CONFLICT ...............................................
IX. TERRITORIALEXPANSION:THE WALL AND
SETTLEMENTS ......................................................
X. CONCLUSION: PROPORTIONALITYREVISITED .............. 1. Introduction
1. The Special Rapporteur visited the occupied Palestinianterritory (OPT) and Israel twice
in 2002. The first visit, in February, laid the foundation for the report tothe Commission on
Human Rights at its fifiy-eighth session (ElCN.4/2002/32),while the second, in late August,
provided the basis for the report tothe General Assembly (Al571366and Add. 1).The present
report, written four months before its presentation in order to comply with administrative
requirements relating to the submission of reports, will be supplemented by an addenduin written
afier a further visit to the region in February 2002.
2.
In 2002 the situation in theegion deteriorated substantially from the perspective of
human rights. Repeated Israeli military operations in the West Bank and Gaza have lefl
physical, economic and social devastation in their wake. This devastation, coupled with the
curfews imposed in the major Palestinian cities and the intensification of checkpoints that
obstruct mobility between towns and villages have brought about a humanitarian crisis which has
added poverty to the woes of the Palestinians. The seriousviolation of economic, social and
cultural rights has been accompanied by the continuedviolation of civil rights and international
humanitarian law. The death toll in both Palestine and Israel has risen sharply, largely as a result
of indiscriminate suicide bombings in Israel and the excessive use of force against civilians by
the Israel Defence Forces (IDF) in Palestine. Detentions, inhumantreatment and the destruction
of property have also multiplied. Meanwhile, Jewish settlements in the West Bank and Gaza
continue to grow despite unanimous international condemnationand assurances from the
Government of Israel that restrictions have been placed on such growth.
3. Much will happen in the region between the writing of this report and its presentation in
March 2003. Elections in Israel and, possibly, Palestine are anticipated early in 2003, and the
threat of war in Iraq remains a reality. The effect of events of this kind, and the consequences of
the ongoing violence, are impossibleto predict with accuracy. One prediction, however, seems
sure: the situation will deteriorate fürther unless, miraculously,serious negotiations between
Israelis and Palestinians resume.
1. HUMANRIGHTS AND TERRORISM
4. Many of the rights contained in the Universal Declaration of Human Rights and the
International Covenants on Civil and Political Rights and on Economic, Social and Cultural
Rights have been violated by IDF in their actions againstthe Palestinian people. Many of the
obligations of international humanitarian law have likewisebeen violated. That this is so is not
seriously contested by Israel. Loss of life, inhuman and degrading treatment, arbitrary arrest and
detention without trial, restrictions on fieedom of movement,the arbitrary destruction of
property, the denial of the most basic economic, social and educational rights, interference with
access to health care, the excessive use of force againstcivilians and collective punishment are
insteadjustified as self-defence and legitimate anti-terrorismaction. That Israel has legitimate
security concerns cannot be denied. That it is entitledto take strong action to prevent suicide
bombings and other acts of terror is not disputed. On the other hand, there must be some limits
on the extent to which human rights may be violated inthe name of anti-terrorisin action. Evenin the present international environment, in which anti-terrorism measures challenge old liberties
and freedoms, it is not denied that a balance must be struck between respect for basic human
rights and the interests of security.
5. In searching forthis balance many factors mustbe considered, includingthe causes of the
terrorism, the possibility of achieving a peaceful end to terrorism by addressing its causes, and
the proportionality of the response taken to the acts of terrorism. The Special Rapporteur
remains convinced that Israel's military occupation of the Palestinian territory is a majorcause of
terrorism and that the ending of the occupation is politically achievable. The Governinent
of Israel has previously condemnedthese assessmentsas politicaljudgements falling outside
themandate of the Special Rapporteur. Consequently,the principal balancing factor -
proportionality - will be the main focus of this report. The violation of human rights and
internationalhumanitarian lawwill be described and the question asked whether the measures
taken by Israelto defend itself can legitimatelybe saidto fall within the bounds of
proportionality. It is not possible to adopt an armchairattitude in making this assessment. Israel
is entitled to a wide margin of appreciation in its response. But, even allowing for this, it may be
that Israel's responseto terror is so disproportionate,so remote from the interests of security, that
it assumes the character of reprisal, punishment and humiliation.
II. LOSS OF LIFE AND THEKILLINGOF CIVILIANS
6. For both human rights law and internationalhumanitarian lawthe protection of human
life is the primary goal. Article 6, paragraph 1,of the International Covenant on Civil and
Political Rights states that "Every human being has the inherentright to life. This right shall be
protected by law. No one shall be arbitrarily deprivedof his life." While accepting that
coinbatants engaged in an armed conflict will be exposedto life-threatening situations,
international humanitarian law seeksto limit harm to civilians by requiring that al1parties to a
conflict respect the principlesof distinction and proportionality. The principle of distinction,
codified in article 48 of the Additional ProtocolI to the Geneva Conventions of 1949,requires
that "the Parties to the conflict shall at al1times distinguishbetween the civilian population and
combatants and betweencivilian objects and military objectives and accordingly shall direct their
operations only against military objectives." Acts or threats of violence, the primary purpose of
which is to spread terror amongthe civilian population,are prohibited (art.51,para. 2). The
principle of proportionality codified in article 51,paragraph 5 (b) prohibits an attack on a
inilitary target which may be expectedto cause incidentalloss of civilian life, injury to civilians
and damage to civilian objectswhich would be excessive in relation to the concrete and direct
military advantage anticipated. That these principles applyto both Israelis and Palestinians was
confirmed by the High ContractingParties to the Fourth Geneva Convention when, in a
declaration issued on 5 December 2001, they called on both parties to the conflict to:
". ..ensure respect for and protection of the civilian population and civilian objects and to
distinguish at al1times betweenthe civilian population and combatants and between
civilian objects and militaryobjectives. They also cal1upon the parties to abstain from
any ineasures of brutality and violence againstthe civilian population whether applied by
civilian or military agents and to abstain from exposing the civilian population to military
0~erati0ns.l7. Sadly, neither party to the conflict in the region has paid proper respect to these
principles as the death toll has continued to rise. Sincethe start of the second intifada in
September 2000, over 2,000 Palestinians and over 700 Israelis have been killed
and 25,000 Palestinians and 4,700 Israelis have been injured. Most have been civilians.
8. Within Israel, mostdeaths have been caused by suicide bombers who have carried their
lethal weapons of destruction ont0 buses and into busy shopping centres. Israel has been
subjected to more than 1,100terrorist attacks since September 2000. Between March and
June 2002, when there was a spate of suicide bombings in Israel, more than 250 Israelis were
killed, of whom 164were civilians and 32 children2 Despite condemnation from the Palestinian
Authority and prominent Palestinian community leaders -and the international community - this
instrument of terror, which showsno regard for either the principle of distinction or that of
proportionality, continues to be used by pararnilitaryPalestinian goups3
9. IDF,well educated in the rules of international humanitarian law, have likewise shown
little regard for the principles of distinction or proportionality. Military incursions into the
West Bank and the reoccupation of Palestiniantowns and cities in 2002 resulted in heavy loss of
civilian life. According to Amnesty International, in the four months between 27 February and
the end of June 2002 - the period of the two major IDF offensives and the reoccupation of the
West Bank - IDF killed nearly 500 Palestinians. Although many Palestinians died during armed
confrontations many of these killings by IDF appearedto be unlawful and at least 16per cent of
the victims - more than 70 - were chi~dren.~
10. Disregard for civilian life was evident in Operation Defensive Shield, in March and
April2002, in which the refugee camp of Jenin and the city of Nablus were subjected to heavy
bombardment from air and land before IDF troops entered, employing bulldozers to facilitate
their movement and allegedly using Palestinian civilians as human shields against snipers. Of
the 80 persons killed inNablus, 50 were civilians, and of the 52 killed in Jenin, 22 were
civilians. SinceNovember 2000, IDF has targeted and killed a number of selected militants in
precision bombings. These assassinations have often been carried out, however, with no regard
for civilians in the vicinity. Of the 179persons killed in such actions, at least one third have
been civilians. The following incident starkly illustrates the manner in which such attacks have
sometimes been made. On22 July, IDF carried out a late-night air strike aimed at Hamas
military leader Salah Shehadawhile he was in a densely populated residential area of Gaza City;
the raid killed 15persons (including 9 children) and injured over 150others.
11. No attempt is made to seek an equivalence between civilian deaths caused by suicide
bombings carried out by non-State actors, where civilians are deliberately targeted, and civilian
deaths that result from "collateral damage" in military action carried out by a State actor with
reckless disregard for human life. Terror bombingsand military offensives in civilian areas
conducted without adequate regard forthe safety of civilians serve completely different
purposes. But the result is the same: loss of innocentcivilian lives. From a moral perspective
both are reprehensible: the former, becausethey deliberately disregard the lives of innocent
civilians; the latterbecause they recklessly disregard human life. III. THE HUMANITARIANCRISISCAUSED BY MILITARYOCCUPATION
12. In the past year Palestinian society has been subjected to a military occupationthat has
damaged, possiblybeyond repair, political institutions, commercial enterprises, public services,
hospitals, schools,families and lives. The IDF military incursion of March to May, code-named
Operation Defensive Shield,causedmaterial devastation in many cities -particularly Jenin and
Nablus. This was followed by OperationDetermined Path in June which resulted in the
reoccupation of seven of the eight major cities in the West Bank and adjoining refugee camps
and villages. Curfews imposed on Jenin, Qalquiliya, Bethlehem, Nablus, Tulkarem, Ramallah
and Hebron have subjectedover 700,000 persons to a regime similar to house arrest which
confines them to their homes, except everythird or fourth day when the curfew is lified for
several hours to allow residents to obtain essential supplies. The curfew is strictly enforced by
IDF and there have been many incidentsof shooting of civilians who failedto observe the
curfew. By October 2002 15civilians,mainly children, had been shot dead by IDF soldiers
enforcing curfews. Curfews have been lified and reimposed accordingto the security situation.
In September 2002,688,000 Palestinians in 39 towns, villages and refùgee camps in the
West Bank were confined to their homes under curfew for varying numbers of days.
13. Military action and curfewsare not the only instruments of repression. Military
checkpoints and roadblocks complementthese instruments. There are some 300 roadblocks of
which 120are manned. Accordingto the ex-Minister of Defence, Benjamin Ben-Eliezer, "The
directive of the Military Command is to freeze al1traffic on West Bank roads, including taxis,
buses, private vehicles and others accordingto security needs.""he "freezing" of traffic on the
West Bank has resulted inthe strangulationof Palestinian society as the West Bank is now
effectively divided into some 50 separate "cantons" and movement between them is both
difficult and dangerous. Checkpointsare largely manned by young soldiers who are given
arbitrary power to allow or refuse vehicles and pedestrians permissionto continue theirjourneys.
14. Humanitarian considerationsare often not taken into account by those manning
checkpoints. Vehicles carrying humanitarian aid are stopped and searched, with resulting delays.
Still worse, ambulances are sometimesdenied access to hospitals or delayed unnecessarily, with
resulting loss life. In November, IDF first shot United Nations Relief and WorksAgency for
Palestine Refugees in theNear East official John Hook and then allowed him to bleed to death
by denying the ambulance carryinghim access to a hospital in time.
15. Equitable accessto scarcewater resources is a central feature of the Palestine-Israel
conflict. According to the HumanitarianPlan of Action 2003 forthe Occupied Palestinian
Territory compiledby the United Nations Technical Assessment Mission of October 2002:
"In the West Bankalone, morethan 200,000 people who depend on supplies brought in
by water tankers are leftwithout adequate water supply for long periods because of
curfews and closures. In additionto problems caused by access, a number of water
systems (water pipes, pumps andwells) were destroyed by the IDF during 'Operation
Defensive Shield'and the ongoingreoccupation of the Palestinian self-rule Areas. Furthermore, a sizeable number of wells and reservoirs in rural areas have been damaged,
destroyed or made inaccessible because of violence. A number of the West Bank villages
adjacentto Israeli settlements have been and are currently suffering from recurrent
closures of main valves on their water net~orks."~
16. The reoccupation has affected every feature of Palestinian life. There have been
shortages of basic foodstuffs, interference with medical services by the denial of access to
doctors and hospitals, interruption of family contacts and stoppagesof education. Municipal
services, includingwater, electricity, telephones and sewage removal, have been terminated or
interrupted, and IDF has denied permission to repair damaged municipal service supplyunits.
There has also been a near complete cessation of productive activity in manufacturing,
construction and commerce as well as private and public services,which has had serious
consequences forthe livelihood of most ofthe population.
17. Unemployment, which stood at 9 per cent in September 2002, has now
reached 50 per cent, 60 per cent or 80 per cent in different areas. Poverty, defined as living
on lessthan US$2 per day per capita, is at 70 per cent. A total of 1.8million Palestinians
receive food aidor other forms of emergency humanitarian support fiom a variety of sources,
notably UNRWA, the World FoodProgramme and the International Committee ofthe
Red Cross. (And, sadly, to add to the woes of the Palestinians, settlers have stolentheir olive
crops in someareas.) Twenty-two per cent of children under the ageof five suffer from acute or
chronic malnutrition,while 20 per cent suffer fiom iron-deficiency anaemia. Mental health
problems have increased alarmingly arnong children. Health care has suffered drastically as a
result of the unavailability of medication and the inability to reach health centres. As usual, the
situation inthe refugee camps is particularly bleak, as was evident when the Special Rapporteur
visited the Balata refugee camp near Nablus inAugust.
18. Many provisions of the International Covenant on Civil and Political Rights have been
violated by the reoccupation, notably articles 6 (rightto life), 7 (freedom from inhuman and
degrading treatment), 9 (fieedom from arbitrary arrest), 12(freedom of movement) and
17and 23 (rightto family life). But it is the economic, social and cultural rights of Palestinians
that have sufferedmost as a result ofthe reoccupation. The right to work and to earn a living
(InternationalCovenant on Economic, Social and Cultural Rights, arts. 6 and 7),to adequate
food, clothingand housing (art. Il), to physical and mental health (art. 12),and to education
(art. 13)are meaningless in a society subject to curfew and closure. How action that causes so
much sufferingto so many can ever be seen as a proportional response to terrorism is beyond
comprehension.
IV. THEDILEMMAOFHUMANITARIANASSISTANCE
19. The law governing occupation, reflected in international custom, the Hague Regulations
Respecting the Laws and Customs of War on Land of 1907and the Fourth Geneva Convention,
is designed to ensure that, notwithstanding the security needs of the occupying Power, the
day-to-day lives of civilians in an occupied territory will continue normally. In today's world,
this ineansthat civilians must have adequate food, shelter, electricity and water; that municipal
services such as garbage and sewage removal will continue; that the sick will have access to
proper medical care; and that education will not beobstructed.20. The Fourth Geneva Conventionelaborates on the responsibilityofthe occupying Power
to ensure that the basic needs of the inhabitantsof an occupiedterritory are provided. It imposes
obligations on the occupant to ensure "the food and medical suppliesof the population" and to
"bring in the necessary foodstuffs,medical stores and other articles ifthe resources of the
occupied territory are inadequate" (art. 55); to ensure and maintain"the medical and hospital
establishments and services, public health and hygiene in the occupiedterritory" (art. 56); and to
facilitate "the proper working of al1institutions devoted to thecare and education of children"
(art. 50). Moreover, article 60 providesthat "[r]elief consignments shall in no way relieve the
Occupying Power of its responsibilities under Articles 55 [and] 56". Obligations to provide
postal services, telecommunications and transport and to maintainpublic welfare institutions
may also be inferred from the Fourth Geneva Convention andthe Hague ~e~ulations.~
Together, these provisions amountto an obligation on the occupantto establish an adequate civil
administration in an occupiedterritory.
21. In terms of the Oslo Accords, the responsibility for civil administration in the West Bank
and Gaza was transferred to the Palestinian Authority. Today, however,the identity of the
authority responsible for the civil administrationofthe West Bankand Gaza is not so clear. The
military operations of 2002 have effectively destroyed much of the infrastructure of the
Palestinian Authority. Electricity andwater supplies have been cut, municipal services
terminated, access to food denied,health care obstructed and education seriously interrupted.
Consequently, responsibility forthe civil administration of OPT would seem to have shifted to
Israel. Israel has, however, made it clear that, although it anticipates a prolonged occupation, it
does not intend resuming responsibilityfor the civil administrationof the territory.'
22. The current situation is untenable. Israel cannot, in terms of international humanitarian
law, deny the Palestinian Authoritythe capacityto provide an adequate and functioning civil
administration, and at the sametime refuse to accept any responsibilityfor such an
administration itself. In law, it is obliged eitherto assume this responsibility or to permit the
Palestinian Authority to provide the servicesthat comprise an adequate civil administration.
There is a heavy burden on al1partiesto the Fourth Geneva Conventionto take measures to
ensure the restoration of a proper civil administration in the Palestinianterritory in accordance
with their obligation under article 1of the Convention "to ensurerespect" for the Convention "in
al1circumstances".
23. The international community's responsehas been to provide humanitarian aid itself,
rather than insist on Israel's dutyto provide such relief. Undoubtedlythis isthe only possible
response in the present crisis. If the internationalcommunity does not respond generously by
providing humanitarian assistance,the Palestinian people will suffer irremediable harm. The
Special Rapporteur therefore endorses,and adds his own voiceto, calls for humanitarian
assistance from the international community.
24. At the saine time, itmust be made clear that, by providing aid of this kind, the
international donor communityrelieves Israelof the burden of providingsuch assistance itself
and in this way might be seento be contributingto the fundingof the occupation. This dilemma
was considered by the UnitedNations Technical Assessment Mission in October 2002 which in
the HunzanitarianPlan ofAction 2003for the OccupiedPalestinianTerritoy stated:E/CN.4/2003/30
page 10
"In presenting its plans, the mission was acutely aware of the central dilemmas before it.
At its most fundamental, this is whether to respond to growing needs of the civilian
population at all. Many of the Palestinians and donors the mission spoke with argued
that, by meeting these needs, the international community would be 'financing the
occupation' andenable Israel to continue its current policies. It would de facto relieve
Israel of itsown responsibilities, asthe Occupying Power, to ensure adequate supplies of
food, inedicines and other basic needs for the population under its occupation. At the
same time, not to meet urgent needs of the population when the international community
has some capacityto do so, and when Israel is unwilling to do so, would doubly punish
the civilian population- and fly in the face ofthe humanitarian imperative to save lives
and protect the victims of conflict. Absent political decisions to address the causes of
this humanitarian emergency, the international aid community thus has no choice but to
help relieve suffering as the crisis continues to deepen."9
V. DESTRUCTION OFPROPERTY
25. It isthe Israeli policy and practice of destroying property - residential homes, commercial
buildings, PalestinianAuthority offices, olivetrees and agricultural property -that raise the most
serious questions about Israel's willingness to respond proportionately to Palestinian violence.
26. For the first 18months ofthe second intifadathe Gaza Stripwas the main target of
Israel's policy of destruction. Hundreds of homes inthe refugee camps of Khan Yunis and
Rafah were reduced to rubble, buildings in Gaza Citywere bombed and fertile agricultural land
"swept" by bulldozersto create wasteland buffer zones for roads specially reserved for settlers.
Commenting on this action B7Tselem(The Israeli Information Center for Human Rights in the
Occupied Territories) comments:
"Examination of the circumstances in which Israel implemented its policy - the extreme
magnitude of the house demolitions, the uprooting of trees, the destruction of agricultural
fields, the manner in which Israel choseto implement its policy - clearly and
unequivocally indicatethat these contentions [thatthe darnagecaused by IDF was
proportional andjustified by military necessity] are baseless. The injuryto the civilian
population was excessive in proportion to the military advantage that Israel ostensibly
sought to achieve by implementingthis policy. ...
"A policy that harms thousands of innocentpeople and whose consequences are so
horrendous and long lasting constitutes collective punishment, which is forbidden by
international humanitarian law"."
27. In 2002 it was the turn of the cities in the WestBank for destruction of property as IDF
launched offensives against Jenin, Nablus and Ramallah following a spate of suicide bombings
in Israel. Statistics,reports of non-governmental organizations (NGOs) and the Special
Rapporteur's own observationsin August strongly suggestthat retribution and punishment
guided IDF action rather than military necessity and regard for the principle of proportionality. E/CN.4/2003/30
page 11
28. During Operation Defensive Shield,from 29 March to 7 May, 800 dwellings were
destroyed in Jenin leaving 4,000 people homeless. Losses were estimated by the World Bank at
US$ 83 million. According to Amnesty Internationalmuch of the destruction of the Jenin
refùgee camp occurred afier 11April, afier the last group of Palestinian fighters had surrendered.
In the opinion of its delegate, Major David Holley:
"There were events post 11April that were neither militarilyjustifiable nor had any
military necessity: the IDF levelledthe final battlefield completely after the cessation of
hostilities. It is surmisedthat the complete destruction of the ruins of battle, therefore, is
punishment for its inhabitants.""
29. InNablus 64 buildings in the Old City, including 22 residential buildings, were
completely destroyed or badly damaged, and a further 22 1buildings partially damaged. Repair
costswere estimated by the World Bank at US$ 114million. According to Amnesty
International:
"A number of religious or historical sites were partially destroyed or severely damaged in
what fiequently appearedto be wanton destruction without military nece~sit~."'~
30. Refugees were the hardest hit inthe military offensives of 27 February to 17 March
and 29 March to 7 May. Over 2,800 refugee housing units were damaged and 878homes
destroyed or demolished, leaving 17,000persons homeless or in need of shelter rehabilitation.
The World Bank estimates that Operation Defensive Shield caused physical damage amounting
to US$ 361 million in the West Bank as a whole, compared with the US$305 million caused
by damage in the first 15months ofthe second intifada.13Private businesses suffered the most
(US$97 million), followed by housing (US$66 million), roads (US$64 million) and cultural
heritage sites (US$ 48 million).
31. In the past, there has often been a disciplined,retributive approach to the destruction of
property. The destruction of property in Operation Defensive Shield,however, had a wanton
character that surprised even the harshest critics of IDF. In many houses entered by IDF,
soldiers broke holes through the walls in orderto reach neighbouring houses. Sometimes, holes
were made from one apartmentto anotherwhere it was possible for soldiers to have entered from
a veranda or window. Worse still,there were reports of vandalism, of wanton destruction of
televisions and computers in homes, schoolsand office buildings and of looting.14
32. The demolition of the homes of families as punishment for crimes committed against
Israel by a family member has longbeen anIsraeli practice. In August, the Israeli High Court
deniedjudicial review in such cases, as had previously been the position, thereby giving military
coinmanders complete discretionto orderthe demolition of houses. Sincethen the demolition of
the homes of suicide bombers and Palestinianmilitants has accelerated. In many instances the
families of militants had beenunaware of their activities, but they were punished nonetheless.
Between July and November 61homes were demolished, leavingmore than 500 persons
homeless, more than 220 of them children.E/CN.4/2003/30
page 12
33. Collective punishment is a serious violation of international humanitarian law. Article50
of the Hague Regulations of 1907 contains a prohibition on such conduct as does article 33 ofthe
Fourth Geneva Convention, whichprovides that "No protectedperson may be punished for an
offence he or she has not personally committed". Moreover, article147of the Fourth Geneva
Convention criminalizes,as constitutinggrave breaches under international law,the "extensive
destruction and appropriationof property, notjustified by military necessity and carriedout
unlawfully and wantonly".
VI. DETENTIONS
34. The assaults on Palestinian townsin March and April in Operation Defensive Shield and
subsequent military operationsinthe West Bank resultedin widespread arrestsand detentions.
In the periodbetween 29 March and 5 May alone, some7,000 Palestinianswere arrested. In
many towns and refugee camps,al1males between the ages of 16and 45 were arrested. Most
were held for several days only. Arrests of this kindconstitutea form of collective punishment
as in most instancesthere is no regard forthepersona1responsibilityof those arrested. In many
cases, arrested personswere subjectedto humiliating and inhumantreatment. They were
stripped to their underpants, blindfolded, handcuffed, paraded before televisioncameras,
insulted, kicked, beaten and ldetained in unhygienic conditions. Those not released have been
held without trial or access to a lawyer. Someare held in administrative detention; othersare
held under the terms of Militas, Order 1500, issuedon 5 Aprilto permit lengthydetention of
those arrested since 29 March. There have been widespread allegationsof torture, consistingof
sleep deprivation, severe beating,heavy shaking,painful shacklingto a small chair, subjectionto
loud noise andthreats of action against family members.
VII. DEPORTATIONIASSIGNED RESIDENCE
35. On 3 September, the Israeli High Courtof Justice issued aruling allowingthe deportation
of two Palestiniansfrom their home town ofNablus to the Gaza Strip onthe ground that they
had allegedly assisted their brother (extrajudicially executedby Israeli forceson 6 August) to
commit attacksagainst Israelis. The Courtheld that, although everyperson has a basic right to
retain his placeof residence, article78of theFourth Geneva Convention recognizes that there
are circumstances inwhich thisright may be overridden. Article 78ofthe Fourth Geneva
Convention provides:
"If the Occupying Power considersit necessary, for imperative reasons ofsecurity, to
take safety measures conceming protected persons, it may, at the most, subject them to
assignedresidenceorto internment."
The Court fùrtherheld that inthe circumstancesof the case, the preconditions setout in
article 78 were fulfilled. The WestBank andthe Gaza Stripwere to be regardedas one territory
subject to a belligerent occupation, and thereforethe case did notvolvethe transfer of a person
outside the area subjectto the belligerent occupation. For this reasonthe Court heldthat
article49 of the Fourth Geneva Convention prohibiting deportationto the territory of the
occupying Powerorto that of another country wasnot applicable. E/CN.4/2003/30
page 13
VIII. CHILDRENIN THE CONFLICT
36. Children have probably suffered most fromthe present conflict. BothPalestinian and
Israeli childrenhave been exposed to threatsto personal safety; while Palestinian children have,
in addition, feltthe breakdownof family life, healthcare and education. In his reportto the
Commissionin March 2002 (E/CN.4/2002/32,paras. 40-53), the Special Rapporteurdrew
attentionto the plight of Palestinian children, particularlyse arrested and detained, and
appealedto the Israeli authorities to investigate allegationsofhumantreatment. Sadly,there
has been noresponseto this appeal. Sincethen UNICEF andNGOs such as Defence for
Children lnternationall%nd Amnesty 1nternational16 have likewise addressedthe suffering of
children and appealedto al1groups involvedinthe conflictto protect children. On
15November 2002the Third Committeeofthe General Assembly adopted a draft resolutionin
which the Committee, concernedthat Palestinian children under Israeli occupationremain
deprived of many basic rightsunderthe Conventionon the Rights of the Child, stressedthe
urgent need for Palestinian children"to live a normal lifefree from foreign occupation,
destructionand fear, in their own State" and called uponthe international community"to provide
urgently neededassistance in an effort to alleviatethe dire humanitariancrisis being faced by
Palestinian children and theirfamilies".
37. Over 400 Palestinianand 100Israeli children havebeen killed since September2000 and
thousands seriously injured. Israeli children have mainlybeen killed in suicide bombingsand
attacks on settlements. Palestinian children have oftenbeen shot and killed in stone-throwing
assaults on IDFbut in most cases, particularlyinthe past year, Palestinian children have been
killed when IDFrandomly opened fire, shelledor bombarded residential neighbourhoodsat
times when therewas no exchangeof fire and in circumstancesin whichthe livesof IDF soldiers
were not at risk. Others havebeenkilled inthe course of the assassination of Palestinian
militants,when vehicles or houses have been subjectedto missile attack. The loss of children's
lives is oftensiinplydismissedas "collateraldamage". The evidence seemsto indicatethat
neither IDFnor Palestinian militant groupshave shown concern forchildrenyslives.
38. Over 1,500Palestinian children underthe age of 18have been arrested anddetained since
September2000 in connection with crimes relatingto the uprising. Mosthavebeen arrested on
suspicion of throwing stonesat Israeli soldiers. On 28 August, Defence For Children
Internationalreported that 350 children were detainedby the Israeli authorities, 15being held in
administrativedetention. Duringthe period Marchto May some700 children werearrested and
detained, albeit forshort periods. As stated inthe report to the Commission (paras. 48-53),there
are seriousreportsof torture and inhumantreatmentofjuveniles while they await trialor after
they have beenimprisoned. Whether tortureisjustified inthe case ofthe "ticking boinb"
scenario remains a question of debate within Israel. This debate is,however, irrelevantto the
treatment of children arrestedfor stone-throwing. There can be nojustification, legallyor
inorally, forthe torture or inhumantreatment of children.
39. Militaryoffensivesand curfews severely disruptedthe educationof Palestinian children
duringthe spring and summerof 2002. Afterthe start of the new school year in September the
situationremainedserious, althoughmost childrenhad either returnedto school or were
receiving alternative schooling. UNICEF reportedin October that morethan 226,000 children
and over 9,300teachers were unable to reach their regular classrooms owingto IDF-imposedE/CN.4/2003/30
page 14
restrictions on movement. Moreover, over 580 schools had been closed because of military
curfews and closures. This has resulted in the creation of a substitute schooling system in which
children aretaught at homes or in mosques. Many parents are unable to send their children to
school. Accordingto UNICEF some 317,000Palestinian schoolchildren are in desperate need of
financial assistance.
40. The humanitarian crisis resulting fiom repeated military incursions, house demolitions,
curfews and closures has lefi its mark on Palestinian children. Thousands have been rendered
homeless; two thirds livebelow the poverty line; 22 per cent under the age of 5 suffer fiom
malnutrition; and most have been psychologically traumatized. Children, who comprise
53 per cent of the Palestinian population, live in a hostile environment resulting fiom Israel's
military occupation in which they are continuously exposed to life-threatening attacks, deprived
of a proper family life, adequate nutrition and health care, denied a normal education and,
frequently, confined to their homes in timeof curfew. Such treatment inevitably engenders
hatred of the military occupant which augurs il1for the future.
IX. TERRITORIAL EXPANSION: THE WALLANDSETTLEMENTS
41. The prohibition on the acquisition of territory by the use of force, even where forcehas
been used in self-defence, is an accepted principle of international law (see the Declaration on
Principles of International Law concerning Friendly Relations and Cooperation among States in
Accordance with the Charter of the United Nations, General Assembly resolution 2625 (XXV)).
This explainswhy the international community has consistently refiisedto recognize Israel's
annexation of East Jerusalem (Security Council resolution 478 (1980)) and the Golan Heights
(Security Council resolution 497 (1981)). When territorial expansion occurs openly, as in the
case of the purported annexation of East Jerusalem and the Golan Heights, the response of the
international community, speakingthrough the United Nations, has been clear and firm. The
response to Israel's present annexation by stealthhas not, however, received the same strong
condemnation.
The wall
42. The erection of a security wall between Israel and OPT is widely portrayed as a security
measure. Had the wall strictly followed the Green Line marking the 1967borders between Israel
and OPT, it might have been possible to confine the debate over the wall to the question whether
a security wall of that kind wouldachieve its purpose. But when it is intended that the wall
encroach deeply upon Palestinianterritory, enclosing an estimated 7 per cent of Palestinian land,
including fertile agricultural land,water resources and villages, it is difficult to resist the
conclusion that it is a case of de facto annexation in which the security situation is employed as a
pretext forterritorial expansion.
Settlements
43. Settlementsmay be seen as another part of this strategy. The international community
has made it clearthat the settling of members of Israel's own civilian population in OPT violates
article 49, sixth paragraph, of the Fourth Geneva Convention and has repeatedly called on Israel
to "freeze" settlement growth pending a peace settlementwhich will result in the dismantling of E/CN.4/2003/30
page 15
al1settlements. Israel's response thatit will limitthe expansion of settleinentsto "natural
growth" is now widely seen to be untrue. Indeed, it is the continued growth in the number of
settlers(5.6 per cent since January 2001), the expansion of settlements (by the devious method of
redrawingthe boundaries of existing settlementsby establishing outposts on these settlements)
and the financial incentives to settle iOPT that brought about the collapse of the Government
'
coalition between Likud and Labour. It is now clear that the Government of Israel is unwilling
to dismantle illegal settlements and is determinedto encourage new settlers and settlements. In
November, following a gun battle betweenPalestinians and Israelis in Hebron, which left
12Israeli securityofficers dead,the Governmentannounced that it would allow the construction
of a new settlement to link Kiryat Arba, a settlementnear Hebron with a population of
about 7,000 residents, with the Jewish enclave in Hebron, accommodating 450 settlers.
44. It willno doubt be argued that commenton territorial expansion by means ofthe
"Great Wall", settlements, and the wide securityroads that link settlementswith each other and
Israel doesnot fa11within the SpecialRapporteur's "human rights mandate". This is not so.
Territorial expansion is of concernto internationalhumanitarian law and human rights law for
three reasons: first, because the settlementsviolate the Fourth Geneva Convention; second,
because Israeliterritorial expansion and the territorial fragmentation of OPT by settlements
interfereswith the right of the Palestinian peopleto self-determination; third, because actions of
this kind raise serious questions about the genuineness of Israel's claim that it conducts a
proportional response to Palestinian violence. Territorial expansion, accompanied by the influx
of new settlers, can hardly be seen as a proportionalresponse to terror.
X. CONCLUSION: PROPORTIONALITYREVISITED
45. It is not the function of the SpecialRapporteur to pronouncejudgement on the
proportionalityof measures taken by Israel in response to Palestine violence. This is a matter for
the Commission on Human Rights or the SecurityCouncil to decide. The task of the Special
Rapporteur is simply to raise the issuesthat should be considered on this subject.
46. As has already been said, Israel has legitimate security concerns. Its right to respond to
terror attacks and to prevent fürther attacks cannot be disputed. When this response takes the
form of life-threateningmilitary action againstmilitants andtheir bases, few will question the
military necessity of such action or the linkbetweenattack and response. But when this action
results in an excessive use of force that disregardsthe distinction between civilians and
combatants, a humanitarian crisis thatthreatens the livelihood of a whole people, the killing and
inhumantreatrnent of children, the widespreaddestruction of property and territorial expansion,
serious questions must be asked aboutthe proportionality of Israel's response andthe boundaries
of military necessity.E/CN.4/2003/30
page 16
Notes
' Declaration issued bythe participating High Contracting Partiesto the reconvened Conference
of High Contracting Partiesto the Fourth Geneva Convention, 5December 2001,paragraph 8.
Amnesty International,Israel and the Occupied Territoriesand the Palestinian Authority:
WithoutDistinction:Attacb on CiviliansbyPalestinianArmed Groups (AI Index:
MDE 02/003/2002),July2002.
3 SeeHumanRights Watch,Erased in a Moment: SuicideBombing. Attacks againstIsraeli
Citizens (October2002), for a fullaccountofthe impactof suicide bombingson Israeli society.
4
Amnesty International,Israel and the Occupied Territories: ShieldedJLomScrutiny: IDF
ViolationsinJenin and Nablus (AI Index: MDE 15/143/2002),November 2002.
"eported inHa'aretz,4 November 2002 (Danny Rubinstein,"ALand of Roadblocksand
Barriers").
6 HumanitarianPlanofAction 2003for the OccupiedPalestinian Territory,United Nations,
New YorkandGeneva, November 2002,p. 30.
7
M. Greenspan,TheModernLaw of Land Warfare,Berkeley, CA, Universityof California
Press, 1959,pp. 230-235. See, too, E. Benvenisti,TheInternationalLaw of Occupation,
Princeton, NJ, Princeton University Press, 1993.
8
Seethe statementsby Mr. Ben-Eliezer, Ministerof Defence, andMajor General Amos Gilad
reported in theInternationalHerald Tribune,24 June 2002.
Op. cit., p. 2.
10
Policy ofDestruction. House Demolitionsand DestructionofAgricultural Land in the
GazaStrip, February2002, pp. 32,35.
11 Amnesty International,op. cit. at note 4, p. 41.
12 Ibid.,p. 57.
13InternationalHerald Tribune,16May 2002.
14
Amnesty International,Israel and the Occupied Territories: TheHeavy Price of Israeli
Incursions, 12April2002.
15
Violationsof Children S Rights StemmingJLomtheIsraeli Occupation(August 2002).
16
Israel andthe Occupied Territoriesand thePalestinianAuthority: Killing the Future.
Children inLine of Fire,MDE 02/005/2002(October2002). ANNEX 6
Report of the SpecialRapporteur of the Commission on Human
Rights, John Dugard, on the situation of human rights in the
Palestinian territories occupied by Israel since 1967, submitted in
accordance with Commission resolution 193/2A,
8 September 2003, ElCN.41200416 UNITED
NATIONS
Economicand Social Distr.
GENERAL
Council
E/CN.4/2004/6
8 September 2003
Original: ENGLISH
COMMISSION ON HUMAN RIGHTS
Sixtiethsession.
Item 8 of the provisional agenda
QUESTION OF THE VIOLATION OP HUMAN RIGHTS IN THE
OCCUPIED ARAB TERRITORIES, INCLUDINGPALESTINE
Report of the Special Rapporteur of the Commission on Human
Rights, John Dugard, on the situation of human rights in the
Palestinian territories occupied by Israel since 1967, submitted
in accordance with Commission resolution 199312A
GE.03-16082 (E) 290903 Summary
The situation in the Occupied Palestinian Territory (OPT) continues to be a matter of
grave concern. Although the road map promoted by the Quartet offers some prospect of peace in
the region, it is importantto record that the past six months have seen continued violations of
human rights and international humanitarian law.
The Government of Israel hasjustified its actions in the OPT on the grounds of
self-defence andportrayed them as anti-terrorism measures. That Israel has legitimate security
concerns cannot be denied. On the other hand, some limit must be placed on the violation of
human rights in the name of counter-terrorism. A balance must be struck between respect for
human rights and the interests of security.
During the past few months the construction of the Wall, separating Israel fiom the
West Bank, has been fienetically pursued. The Wall does not follow the Green Line, which
marks the de facto boundary between Israel and Palestine. Instead, it incorporates substantial
areas of the West Bank into Israel. Over 210,000 Palestinians will be seriously affected by
the Wall. Palestinians living between the Wall and the Green Line will be effectively cut off
from their farmlands and workplaces, schools, health clinics and other social services. This is
likely to lead to a new generation of refugees or internally displaced persons.
The Wall has al1the features of a permanent structure. The fact that it will incorporate
half of the settlerpopulation 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. Annexation of this
kind, known as conquest in international law, is prohibited by the Charter of the UnitedNations
and the Fourth Geneva Convention. The Special Rapporteur submits that the time has come to
condernnthe Wall as an unlawfül act of annexation in the same way that Israel's annexation of
East Jerusalem and the Golan Heights has been condemned as unlawful. Similarly, no
recognition should be given by the international cornmunityto Israel's control over Palestinian
territory enclosed by the Wall.
The restrictionson fieedom of movement continue to create a humanitarian crisis in
the OPT. Although curfews have not affected as many people in 2003 as in the previous year,
they still disrupt Palestinian life on a broad scale. The number of checkpoints has increased
during the past six months. These restraints on the movement of goods and persons give rise to
uneinployrnent,poverty, poor health care and interrupted education and, in addition, they result
in the humiliation of the Palestinian people.
The death toll in the conflict continues to rise as a result of suicide bombings and military
incursions. The Israeli practice of assassinating suspected terrorists has inflicted death and
injury not only on those targeted but on a substantial number of innocent civilians in the vicinity
of such actions. The legality of such measures is highly questionable. There are some 6,000 Palestinians in Israeli prisons and detention centres. Although
Israel has agreedto release 540 of them, its refusal to release more prisoners constitutes a major
obstacle in the way of peace in the region. Sadly, allegations of torture and inhuman and
degrading treatment continue to be made. The Special Rapporteur therefore calls for an
independent inquiry into such allegations.
The destruction of property in the OPT continues unabated. During the past eight
months, Gazahas been particularly affectedby military action that has caused large-scale
devastationto houses and agricultural land.
Israel's undertaking tocurb the growth of settlements has not been implemented. On the
contrary, settlementshave 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 OPT. CONTENTS
Page
1. Introduction ..........................................................
.................5.............
II. Hurnanrights and terrorism ........................................................
..6............
III. Annexation and the Wall ........................................................
...............
6
IV . Restrictions on freedom of movement and the humanitarian crisis ................... 9
V . Loss of life andthe killing of civilians ................................................10............
VI . Prisoners ........................................................
.....................12.............
VI1 . Destruction of property .........................................................
.....13.......
VI11 . Settlements ........................................................
...................14...........
IX . Conclusion .......................................................
......................15........ 1. INTRODUCTION
1. The Special Rapporteur visited the Occupied Palestinian Territory (OPT) and Israel
from22 to 29 June 2003. In the course of this mission he visited Gaza, Ramallah, Nablus,
Bethlehem,Jericho and Jerusalem. He met with President Arafat, ministers of the Palestinian
Authority (PA), members of the PalestinianLegislative Council (PLC) and the Governor of
Nablus, who briefed hirn fully on the situation. He also inet with prominent Palestinian and
Israeli interlocutors and Palestinian and Israeli non-govemmental organizations (NGOs) who
informedhim about the hurnan rights situationin the OPT. Accompanied by the
Comrnissioner-Generalof the United Nations Relief and Works Agency for Palestine Refügees
in the Near East (UNRWA), Peter Hansen,he visited Beit Hanoun in the Gaza Strip, the scene of
massive destruction of homes and agricultural lands. In Ramallah he visited the Surda and
Kalandiya checkpoints, where he observedthe restrictions on fieedom of movement imposed on
Palestinians. The WalVFence/Barrier(hereinafter"the Wall")separating Israel fiomthe
West Bank featured prominently in the SpecialRapporteur's mission. He observed the
constructionofthe Wall near Jayyous village and Bethlehem.
2. Unfortunately, the Government of Israel continues to withhold its cooperation from the
SpecialRapporteur. Inpart, the SpecialRapporteur's failureto hear the Governrnent's response
to the issues described in this report was overcome by attendance at the presentation of Israel's
secondperiodic report (CCPRJC/ISR/2001/2)on its compliance with the International Covenant
on Civil and Political Rights (ICCPR)before the Human Rights Committee on 24 and
25 July 2003. This two-day dialogue betweenrepresentatives of the Government and the Human
Rights Committee coveredmany of the issues considered in the present report and provided the
SpecialRapporteur with a clear understanding of the Israeli position. In the course of its
presentation,the Government reiterated its argument that its actions in the OPT are to be
ineasured against the rules of internationalhumanitarian law and not those of international
human rights law, contained in ICCPR. The Human Rights Committee confirmed that it was
unable to accept this argument and reaffirmed its determination tojudge Israel's actions in terms
of both these legal regimes. This remains the approach of the Special Rapporteur.
3. The Special Rapporteur left the region shortly before the declaration of a ceasefire by
militant groups in the OPT. At the time of writing this report there is relative calm and there is
some ground for hoping that the road map, leading to peace between Palestine and Israel and the
ultiinate creation of a Palestinian State,will succeed. Serious obstacles remain, however, in the
way of the successful implementation of the road map. Most of these obstacles have a human
rights dimension and are discussed in this report. Peace in the region cannot succeed without a
return to the rule of law and respect for human rights and international humanitarian law. It is
unfortunate that the road map, like the OsloAccords, fails to give sufficientweight to this factor.
4. Previous reports have followed an all-too-familiar pattern, describing deaths, detentions,
the humanitarian crisis, destruction of property, the suffering of children and settlements. This
report will follow a different sequence. After the necessary disclaimer of sympathy for
terrorism, the report will focus on two issues that, in the opinion of the Special Rapporteur, most
seriouslydemand the attention of the international comrnunity- the unlawful annexation of
Palestinian territory and the restrictions on freedom of inovement. Thereafter, the report will
turn to deaths, detentions, the demolitionof property and settlementswhich, unhappily, continue
to characterize the situation. II. HUMANFUGHTSANDTERRORISM
5. At the outset,it is necessary for the Special Rapporteur to reaffirm his opposition to
terrorism and his commitment to human rights. Many of the rights contained in the International
Covenant on Civiland Political Rights andthe InternationalCovenant on Economic, Social and
Cultural Rights have been violated by the Israel DefenceForces (IDF) in their actions against the
Palestinian people. Many of the obligations of internationalhumanitarian law have likewise
been violated. These violations are, however,justified by Israel as action taken in self-defence
and legitimate anti-terrorism action. That Israel has legitimate securityconcems cannot be
denied. That it is entitled to take strong action to prevent suicide bombings and other acts of
terror is not disputed. On the other hand, there must be some limit to the extent to which human
rights may be violated in the narne of counter-terrorism. Even in the present international
environment, in which anti-terrorism measures challenge old liberties and freedoms, it is not
denied that a balancemust be struck between respect forbasic human rights and the interests of
security. Here the principle of proportionality recognized by international humanitarian law has
a key role to play. It is not possible to adopt an armchair attitude in assessing Israel's response
to suicide bombings and Palestinian violence. Israel is entitled to a wide margin of appreciation
in its response. But, even allowing for this, it is suggested,on the basis of the evidence provided
in this report, that Israel's responseto terror is disproportionate. On occasion, Israel's action in
the OPT is so remote from the interests of security that it assumes the character of punishment,
humiliation and conquest.
III. ANNEXATIONANDTHE WALL
6. Language is a powerful instrument. This explainswhy words that accurately describe a
particular situation are often avoided out of fear that they will too vividlyportray the situation
which they seekto depict. In politics euphemism is often preferred to accuracy in language. So
it is with the Wall that Israel is presently constructing within theterritory of the West Bank. It
goes by the narneof "Seam Zone", "Security Fence" or "Separation ~all"'. The word
"annexation" is avoidedas it is too accurate a description and too unconcerned about the need to
obfuscatethe tmth in the interests of anti-terrorism measures. However, the fact must be faced
that what we arepresently witnessing in the West Bank is a visible and clear act of territorial
annexation under the guise of security. There may have been no officia1act of annexation of the
Palestinian tenitory in effect transferred to Israel by the construction of the Wall, but it is
impossible to avoid the conclusion that we are here faced with annexation of Palestinian
territory.
7. Israel is presently building a wall between Israel and the West Bank that, when
completed, will be some450 (possibly 650) kilometresin length. At the time of writing some
150kilometres have already been completed and building constructors are working frenetically
to finish it as soon as possible. At times this barrier takes the form of an eight-metre-high wall
(near Qalqiliya). Mostly it takes the form of a bamer some 60 to 100metres wide, which
includes buffer zones with trenches and barbed wire, trace paths to register footprints, an electric
fence with sensorsto warn of any incursion, a two-lane patrol road and fortified guard towers at
regular intervals. No-go areas of over 100metres wide on each side of the barrier will be policed
by IDF. Israel has undertaken to install some 27 agricultural crossings and 5 general crossings
for traffic andpersons through the barrier but as yet littleprogress has been made on these
crossings.8. Possibly, the Wall will assist in the achievement of the Govemment's publicly declared
goal - to prevent suicide bombers fiom reaching Israeli territory. Even this, however, is doubted
by soine who point to the factthat most suicide bombers have passed through checlcpointsand
that the Wall will not deter persons determined to cross into Israel to coininit acts of terrorism.
That this is a valid complaint is borne out by the comment of the Israeli State Comptroller in his
report of July 2002 that "IDF documents indicatethat most of the suicide terrorists and car
bombs crossedthe seam area into Israelthrough the checkpoints,where they undenvent faulty
and even shoddy checks".'
9. The Wall does not follow the Green Line, that is the 1967boundary between Israel and
Palestine which is generally accepted as the border between the two entities. Instead, it follows a
route that incorporates substantialparts of Palestine within Israel. At present the Wall intrudes
six to sevenkilometres within Palestine,but there are proposals to penetrate still deeper into
Palestinian territory in order to include the settlements of Ariel, Imrnanuel and Kedumiin. In
some places thewinding route creates a barrier that completely encircles Palestinian villages
while at manypoints it separates Palestinianvillages from the rest of the West Bank and
converts them into isolated enclaves. Qalqiliya, a city with apopulation of 40,000, is completely
surrounded by the Wall and residents can only enter or leave through a single military
checkpoint open from 7 a.m. to 7p.m. Palestinians between the Wall and the Green Line will
effectively be cut off fiom their land and workplaces, schools, health clinics and other social
services. Much of the Palestinian land on the Israeli side of the Wall consists of fertile
agricultural land and some of the most important water wells in the region. The Wall is
constructed on Palestinian lands expropriatedby Israeli military order,justified on grounds of
military necessity. Many fruit and olive trees had been destroyed in the course of building the
bamer. B'Tselein, a leading Israelihuman rights NGO, estiinates that the barrier will cause
direct harm to at least 210,000 Palestinians living in 67 villages, towns and cities.
10. Palestinians, unconvinced by Israel's assurances that they will be allowed to pass through
the crossingsto be erected in the Wall, aremoving fiom their homes in the affected areas to the
security of what remains of Palestine. It is reported that already some 600 shops and enterprises
have closed in Qalqiliya as a result of the construction of the Wall. The Wall will therefore
create a new generation of refugeesor intemally displacedpersons.
11. It is impossible to give complete facts about the Wall as its final trajectory is still
surrounded in secrecyand uncertainty. The path of the Wall changes regularly in response to
demands from settlers and otherpolitical interest groupswithin Israel. There is no transparency
surrounding the construction of the Wall and its final course seems to be known only to an inner
circle of the military and political establishmentwithin Israel. It is, however, widely expected
that, followingthe completion of the Wall separating Israel from the West Bank on the western
side, an eastem wall will be constructed,along the mountain ridge west of the Jordan Valley,
which will separate Palestine fromthe Jordan Valley.
12. The Wall must be seenin the context of settlement activity (discussed later) and the
unlawful annexation of East Jerusalem. Settlementsin East Jerusalem andthe West Bank are
the principal beneficiaries of the Wall and it is estimated that approximately half of the
400,000 settler population will beincorporated on the Israeli side of the Wall. Needless to Say,
it is extraordinary that such actionshouldbe taken to incorporate illegal settleinents that fonn thesubject of negotiations between Israel and Palestine. The Wall will be built at great cost to
Israel: it is projected that US$ 1.4billion will be spenton its construction. This siinply confinns
the permanent nature of the Wall.
13. The Wall has serious implications for human rights. It further restricts the freedoin of
movement of Palestinians, restricts access to health and education facilities and results in the
unlawful taking of Palestinian property. However, the Wall has more serious implications as it
violates two of the most fundamental principles of contemporaryinternational law: the
prohibition on the forcible acquisition of territory and theright to self-determination.
14. Like the settlements it seeks to protect, the Wall is manifestly intended to create facts on
the ground. It may lack an act of annexation, as occurred in the case of East Jerusalem and the
Golan Heights. But its effectis the same: annexation. Annexation of this kind goes by another
name in international law - conquest. Conquest, or the acquisitionof territory by the use of
force, has been outlawed by the prohibition on the use of force contained in the Kellogg-Briand
Pact of 1928and Article 2, paragraph 4, ofthe Charterof the UnitedNations. The prohibition on
the acquisition of territory by force applies irrespective of whether the territory is acquired as a
result of an act of aggression or in self-defence. The Declarationon Principles of International
Law conceming Fnendly Relations and Cooperation among States in accordance with the
Charter of the United Nations (General Assembly resolution 2625 (XXV) of 24 October 1970,
annex) declares that "the territory of a State shall not be the object of acquisition by another State
resulting from the threat or use of force. No territorial acquisitionresulting from the threat or
use of force shall be recognized as legal". This prohibition is confirmed by SecurityCouncil
resolution 242 (1967) and the Oslo Accords, which provide that the status of the West Bank and
Gaza shall not be changed pending the outcome of the permanent status negotiations.3 The
Geneva Convention relative to the Protection of CivilianPersons in Time of War (the Fourth
Geneva Convention) provides that protected persons in an occupiedterritory shall not be
deprived of the benefits of the Convention "by any annexation ...of the occupied territory"
(art. 47).
15. The right to self-determination is closely linkedto the notion of territorial sovereignty.
A people can only exercise the right of self-determination within a territory. The amputation of
Palestinian temtory by the Wall seriously interfereswith the right of self-determination of the
Palestinian people as it substantiallyreduces the size of the self-determination unit (already
sinall) within which that right is to be exercised.
16. The Special Rapporteur submits that the time has come to condemn the Wall as an act of
unlawful annexation in the language of Security Councilresolutions 478 (1980) and 497 (1981)
which declare that Israel's actionsaimed at the annexationof East Jerusalem and the
Golan Heights are "nul1and void" and should not be recognizedby States. Israel's claim that the
Wall is designed entirely as a security measure with no intention to alter political boundaries is
simplynot supported by the facts. IV. RESTRICTIONSON FREEDOMOFMOVEMENTAND
THE HUMANITARIAN CRISIS
17. Previous reports have described the seriousrestrictions on freedom of moveinent
imposed on the Palestinian people by the Occupying Power. Checkpoints, closures and curfews
are words that fail to capture the full enormity of what is happening today in the West Bank and
Gaza. A checkpoint is not simply a military outpost on a highway that checksthe documents of
pedestrians and traffic that seek to proceed along the road. Every day thousands of Palestinians
must pass through these checkpointsin orderto travel fromhome to work, to reach schools and
hospitals and to visit friends and family. Every day Palestinians are compelled to waste hours
passing through these checkpoints. Frequently, Palestinians are obliged to leave their vehicles at
one checkpoint and to walk along dusty roads to another checkpointto take a taxi to their
destination. Accounts of rudeness, humiliation and brutality at the checkpoints are legion.
Ambulances are often delayed and women give birth to children at checkpoints. Checkpoints are
not so much a security measure for ensuring that would-be suicidebombers do not enter Israel,
but rather the institutionalization of the humiliation of the Palestinian people. Similarly, a
curfew is not simply a restriction on leaving one's home. Itis the imprisonment of the people
within their own homes. Unableto go to work, to buy food, to go to school, to visit hospitals or
to bury theirdead, they are confinedwithin the walls of their own homes while the IDF patrols
their streets. Statistics of checkpointsand curfews cannot accurately portray the obscenity of the
situation. Unfortunately, Israelis areprotected from seeing what their army is doing to their
subjugated neighbour by laws that restrict Israelis from seeing what is happening. The
acclaimed Palestinian author,Raja Shehadeh,described the situation in his recent book Whenthe
Bulbul Stops Singing: A Diary ofRamaIIah Under siegc4 "During the first intifada, the
inovement of both people into the land of the other continuedto be possible. .. Al1sorts of
relations developed between the people on the two sides of the divide. None of this has been
possible this time. With the exception of a few deterrninedIsraelijoumalists, it was left to the
armyto present to the Israeli people the reality of the Occupied Territories. The prohibition
against travel by both sides to each other's territories meant that the demonization could continue
unchallenged."
18. The task of the Special Rapporteuris to report on facts. Curfews continue, but without
the severity of 2002. From November 2002 to April2003, an average of 390,000 civilians were
under curfew compared with 520,000 in the secondhalf of 2002. However, people under curfew
in Hebron, Jenin and parts of Gaza were frequentlyunder tighter and more continuous curfew
in 2003.
19. There are some 300 checkpoints or roadblocks, including about 140 checkpoints manned
by the inilitary. However, in late July 2003 a number of roadblocks were removed within the
context of the implementation of the road inap. CheckpointsVaryin nature and include
pennanent checkpoints, mobile checkpoints,unmanned roadblocks, dirt walls, earth mounds,
concrete blocks, iron gates and trenches dug around villages and towns. Sometimes tanks or
military vehicles areused as roadblocks. These checkpoints or roadblocks, around every town
and major roadjunction, divide the OPT intemally. Eight commercial checkpoints divide the
West Bank into the separate cantons of Hebron, Bethlehem, Jericho, Ramallah, Nablus,
Tulkarein, Qalqiliya and Jenin. Each district has one official coinmercial entrance.
Commercial goods must be unloaded and transferred to another vehicle on the other side of the
checkpoint ("back-to-back transport"). Checkpointsfor ordinary people likewise soinetiinesE/CN.4/2004/6
page 10
require back-to-back transfer. These checkpoints divide the West Bank into a patchwork of
cantons. SinceMarch 2002, permits have been required to travel from one district to another.
Gaza is totally isolated from the rest of Palestine. It too, however, is partitioned into three
separate cantons by checkpoints. These measures have not prevented the movement of militants
between different towns or regions orbetween Palestine and Israel. They do not protect
settlements which are already well protected by the IDF. Instead, internal checkpoints restrict
internal trade within the OPT and restnct the entirepopulation from travelling from village to
village or town to town. They must therefore be seen as a form of collective punishment.
Writing in Ha 'aretzon 27 July 2003, the columnist Gideon Levy wrote that the purpose of
checkpoints is "to make the lives of the local residents as miserable as possible".
Unfortunately, the Israeli representatives appearing before the Human Rights Coinmittee
on 24 and 25 July 2003 made no serious attempt to address the issue of checkpoints. Indeed,
there seemed to be no appreciation on their part of the hardships and humiliation caused by
checkpoints.
20. Checkpoints,closures and curfews have had a major impact on the Palestinian economy.
According to a World Bank report of May 2003, "The bulk of Palestinian economic losses
stem from closureand curfew."' This has resulted in unemployrnent (which now stands
at 40 per cent in the West Bank and Gaza) and poverty (60 per cent of the people live on less
than US$ 2 per day; 2 million live inpoverty, dependent on food from international donor
agencies). Checkpointsand curfewshave also led to a drop in health standards resulting from
inability to accesshospitals and clinics, the impossibility of carrying out health-care prograinmes
(for example, vaccinations) andthe psychological trauma arising fiom the physical, economic
and social consequences of occupation. Checkpoints have also resulted in the failure to acquire
nutritious food and sufficient clean water. The obstruction of ambulances at checkpoints
reinains a seriousproblem. Inthe past year, about 60 ambulances per month were held up at
checkpoints of which a quarter were denied passage. In March 2003, 15ambulances were fired
upon. Childrenhave suffered dramatically. Schools are closed by curfew and checkpoints make
it difficult for both teachers and children to reach schools. Twenty-two per cent of children
under the age of 5 suffer from acute or chronic malnutrition while the breakdown of family life
has had a severe impact on children.
21. There is a humanitarian crisis in the West Bank and Gaza. It is not the result of a natural
disaster. Instead, it is a crisisimposed by a powerful State on its neighbour.
V. LOSSOFLIFEAND THEKILLINGOF CIVILIANS
22. For both human rights law and international humanitarian law the protection of human
life is a primary goal. Article 6 (1) of the International Covenant on Civil and Political Rights
states that "Every human being has the inherent right to life. This right shall be protected by
law. No one shallbe arbitrarily deprived of his life." While accepting that combatants engaged
in armed conflictwould be exposed to life-threatening situations, international humanitarian law
seeks to liinit hann to civilians by requiring that al1parties to a conflict respect the principles of
distinction andproportionality. The principle of distinction, codified in article 48 of ProtocolI
Additional to the Geneva Conventions of 12August 1949,requires that "the Parties to the
conflict shall at al1times distinguishbetween the civilian population and combatants and
between civilianobjects and inilitary objectives and accordingly shall direct their operations
only against military objectives". Acts or threats of violence the priinary purpose of which is E/CN.4/2004/6
page 11
to spread terror among the civilianpopulation, are prohibited (art. 51(2)). The principle of
proportionality, codified in article 51 (5) (b), prohibits an attack on a military target "which
inay be expected to cause incidentalloss of civilian life, injury to civilians, [or] damage to
civilian objects ...which would be excessive in relation to the concrete and direct military
advantage anticipated". That these principles apply to both Israelis and Palestinians was
confmed by the High ContractingParties to the Fourth Geneva Convention when, in a
declaration issued on 5 December 2001, they called upon both parties to the conflict to:
"...ensure respect for and protection of the civilian population and civilian objects and to
distinguish at al1times between the civilian population and combatants and between
civilianobjects and militaryobjectives."
23. Sadly, neither party to the conflict in the region has paid proper respect to these
principles as the death toll has continued to rise. Since the start of the second intifada in
September 2000, over 2,755 Palestinians and over 830 Israelis have been killed
and 28,000 Palestinians and 5,600 Israelis have been injured. Most have been civilians.
Five hundred and fifS children have been killed, of whom 460 were Palestinians and 90 Israelis.
The nuinber of Palestinian childrenkilled, mainly in air and groundattacks, has increased
in 2003. Within Israel, most deathshave been caused by suicide bombers.
24. The assassination of Palestinian militants has intensified. From October 2000
to April2003, the IDFhas killedmore than 230 Palestinians, including 80 children, women and
innocent bystanders, in assassinationactions. Over 300 persons have been injured in these
actions. In the period 10-14June 2003, the IDF killed 27 Palestinians and wounded dozens of
others in a series of extrajudicialkillings carried out by helicopter gunships in the Gaza Strip.
These attacltsincluded an unsuccessful assassination attempt on Dr. Abdel Aziz Al-Rantisi, a
seniorpolitical leader of Hamas. Four people were killed and 35 injured while 29 nearby
apartinentswere damaged. On 12June 2003, IDF helicopters bombarded the car of
Yasser Taha. He was immediatelykilled, together with his wife and young daughter.
In addition, five other civilians were killed in the attack and 36 were wounded,
including 10children.
25. In June 2003, a number of NGOs comrnenced legal proceedings to stop assassinations.
This inatter is still before the Israeli High Court of Justice, which has refused a request for a
temporary injunction against further assassinations. Judge Antonio Cassese, fonner President of
the International Criminal Tribunal for the Former Yugoslavia, has submitted an expert opinion
to the Court in which he assertsthat assassinations of this kind couldbe considered as war
crimes. In his opinion, he maintainsthat the killing of civilians suspected of terror activity, when
no direct belligerent operationin which they are involved is taking place, substantively infringes
the basic principle that armed forces must distinguish between combatants and civilians. He
further argues that suspects shouldbe arrested and tried, which is oftenpossible in the light of
Israel's controlof the OPT.
26. Israeljustifies its policy and practice of assassinations on grounds of self-defence and
claiins that it is not possible to arrest and try suspects,particularly where they are in areas
controlled by the Palestinian Authority. The evidence on this point is inconclusive as there are
certainly soine instances in which arrests could have been made in the light of Israel's capacityE/CN.4/2004/6
page 12
to exercise itsjurisdictional power within the areas controlled in theory by the Palestinian
Authority. The failure to attempt such arrests inevitably givesrise to suspicions that Israel lacks
evidence to place such persons on trial and therefore prefers to dispose of them arbitrarily.
27. The indiscriminate use of violence is further illustrated by the use of flechette shells in
Gaza. The use of such anti-personnel weapons in such a densely populated area as Gaza exposes
civilians to greatrisk and fails to take account of the need to distinguishbetween civilians and
inilitary objectives. On 27 April2003, the Israeli High Court of Justice refused to intervene in
the arrny'schoice of weapons because flechettes are not banned outright under international law.
28. The failure of the IDF to investigate crimes cornmittedby its members in the OPT has
long been criticized. In June 2003, this criticism was confirrnedwhen the Judge Advocate
General stated that a mere 55 investigations into shooting incidents had been opened since the
beginning of the second intifada, resulting in only six indi~tments.~
VI. PRISONERS
29. At the time of writing this report, there are some 6,000 Palestinians in Israeli prisons
and detention centres. Some have been tried, some have not. The number of those detained
includes 175juveniles and 70 women. Approximately 800persons are held in administrative
detention, that is detention by administrative order rather thanjudicial procedure. The issue of
prisoners has become a major obstacle in the implementation of the road map. Israel is reluctant
to release more than 540 prisoners while the Palestinian Authority demands that al1prisoners be
released.
30. There are serious complaints about the treatinent of prisoners that are supported in
varying degrees by respectable non-governmental organizations such as the Public Coimittee
Against Torture in Israel (PCATI), the World Organization against Torture (OMCT), the
Defence for Children International - Palestine Section, LAW - The Palestinian Society for the
Protection of Human Rights and the Environment, Al-Haq and the Mandela Institute For Human
Rights. These complaints cover al1prisons and detention centres and include men, women and
children held in imprisonment as well as administrative detainees. On the one hand, these
complaints cover allegations of overcrowding, disgustingprison conditions and lack of proper
medical care. On the other hand, they include serious allegations of inhuman and degrading
treatrnent, sometimes amounting to torture.
3 1. In 1999the Israeli High Court of Justice ruled that variousmethods of torture employed
by the General Security Service (GSS), such as violent shaking,covering the head with a sack,
Qing to a small tilted chair or position abuse (shabeh), sleep deprivation and painful shackling
were, when applied cumulatively, illegal. Despite this, there is considerable evidence that these
methods arestill employed during the interrogation of adults andjuveniles. In a publication
entitled Buckto a Routine of Torture covering the period September2001 to April2003, PCATI
estimated that forthe first half of 2003, "each month, hundreds of Palestinians havebeen
subjected to one degree or another of torture or other cruel, inhumanor degrading treatinent, at
the hands of the GSS and bodies working on its behalf. ...The bodies which are supposed to
keep the GSSunder scrutiny and ensure that interrogations are conducted lawfully act, instead, E/CN.4/2004/6
page 13
as rubber stamps for decisions by the GSS". These allegationsare difficult to reconcile with the
assurance given by the representatives of the Israeli Govemment before the Human Rights
Coinmittee on 24 and 25 July 2003 that allegations of this kind had been properly investigated
and proved to be unfounded orjustified on grounds of necessity.
32. The Special Rapporteur finds himself in an awkward situationwhen it coines to assessing
evidence of this kind. Allegations of torture and inhuman treatmentare supported in varying
degrees by highly respected NGOs that have taken statementsfiom former prisoners and
consulted with lawyers working withinthe system. Moreover, there are serious doubts about the
impartiality of the investigations of these complaints carried out by the Israeli authorities. The
SpecialRapporteur is denied accessto Israeli prisons and detention centres and to govemnent
officials who might assist in the task of assessing the validity of allegations on this subject. The
Special Rapporteur therefore urgently calls upon the Israeli authonties either to permit an
independent international cornmitteeto investigate such complaintsorto conduct a full-scale
independentjudicial inquiry into suchallegations itself. It has ofien been said that the degree of
civilization of a State can be measured by the way in which it treats prisoners. At present Israel,
which prides itself on a high standard of criminaljustice within its own borders, runs the risk of
forfeiting this reputation by its consistentrefusal to respond to criticisms of treatment of
prisoners fiom the OPT.
VII. DESTRUCTIONOFPROPERTY
33. The destruction of property in the OPT continues unabated. Three principal reasons are
advanced by Israel for the destructionof homes and agriculturalproperty. First, the interests of
security or military necessity may require houses to be destroyed and agricultural land to be
cleared ("shaved" or "swept") to prevent suchhouses or trees from being used to provide cover
for militants bent on attacking settlementsor IDF positions. This has resulted in the creation of
wide buffer zones adjacent to settlementsand roads used by settlers. Secondly, the homes of
those who have comrnittedcrimes against Israel are destroyedby way of punishment (although
the Israeli Government prefers to describethis as a form of deterrence). Thirdly, houses built
without administrative permission, in a system in which permits are seldom granted, are
destroyed to assert respect for Israel's administrative regime. These three reasons have been
invoked by the Israeli authorities to destroy thousands of homes and to lay bare vast areas of
fertile agricultural land.
34. The situation is particularly acute in Gaza. According to the Cornrnissioner-General
of UNRWA, "At the end of May 2003, a total of 1,134homes [had]been deinolished by the
Israeli military in the Gaza Strip,making almost 10,000individualshomeless. Unfortunately,
this is not a policy on the wane. Duringthe first two years of the intifada, the average
number of homes demolished in Gaza - a statistical categoryboth depressing and surreal-
was 32 per month. Since the startof 2003, the average has risen to 72. Disturbingly, the
publication of the road inap to peace has so farhad no impact."' The Special Rapporteur had
the opportunity to observe the devastationcaused in Beit Hanoun at first hand when he visited
on 24 June 2003. Parts of this town hadbeen reduced to a wasteland as a result of the
destruction of homes and orchards. It appears that this act of large-scaledevastation was in part
a punitive ineasure taken againsthomes and orchards in the neighbourhood of a roadside bomb
aimed at an Israeli military vehicle.E/CN.4/2004/6
page 14
35. The collective punishrnent of Palestinians in the form of destruction of property has had
serious consequences for the Palestinian people and the environrnent of Palestine. According to
Jeff Halper, the Director of the Israeli Committee against House Demolitions, "The bulldozer has
becoine as much a symbol of Israeli occupation as the rifle and the tank".
VIII. SETTLEMENTS
36. The international community is united in its opposition to Israeli settlements in the OPT.
It has repeatedly described them as being in violation of the sixth paragraph of article 49 ofthe
Fourth Geneva Convention whichprohibits the OccupyingPower from transferringparts of its
own civilian population into the territory it occupies. The road map makes it clear that the
dismantling of settlements is an important issue in the resolution of the Israeli-Palestinian
conflict.
37. There are at present some 200 settlements in the OPT containing a total population of
over 400,000. Inthe West Bankthere are more than 120settlements with over 230,000 settlers,
while in the Gaza Strip there are 16settlements with some 7,000 settlers. About 180,000settlers
live in the neighbourhoods of East Jerusalem. Settlements often comprise fully developed towns
and villages. For instance, Ma'aleh Adumim has apopulation 28,000 settlers. Roads
constructed to link settlements with each other and to allow access to Israel have also resulted in
the taking of Palestinian land.
38. Israel has given an equivocalundertaking to restrict the growth of settlementsto "natural
growth" and to dismantle "unauthorized settlernents", that is outposts and extensions to existing
settlements not authorized under Israeli law. Despite this, new settlements are being built, as the
Special Rapporteur saw on several occasions, and existing settlements continue to grow. The
population growth in the settlements is three times that of Israel itself. In 2002, the population in
the Israeli settlements in the West Bank grew by 5.7 per cent compared with 1.9per cent in
IsraeL8 The Israeli Government continues to offer financial inducements to Israelis to settle in
the OPT and in 2003 Israel budgeted 1.9billion new Israeli shekels for settlements. Further
evidence of the determination of the Israeli Government to entrench the settlements is provided
bythe erection of the Wall (discussed in chap. III above), the continued clearing of Palestinian
land within the proximity of settlements for securitypurposes and the allocation of heavy
military resources to protect settlements. (For example, the 532 settlers who live in the centre of
Hebron areprotected by some 100Israeli soldiers.)
39. Settlements fragmentPalestinian temtory and seriouslyundermine the prospects for
Palestinian self-determinationwithin a viable territorial unit. A recent study carried out by
B'Tselem estimates that 41.9 per cent of the total land area of the West Bank is effectively under
the control of settlements, including developed areas, non-developed municipal areas and land
reserves.
40. The harsh tmth is that there is no "freeze" on the construction or growth of settlements.
Moreover, the Israeli Governmentis taking no steps to reverse this pattern of growth. A poll
conducted by the Israeli group "Peace Now" in July 2003 has shown that 74per cent of the
settlers inthe OPT would leavetheir homes in return for compensation. If the Israeli E/CN.4/2004/6
page 15
Govemment were serious about itsundertaking to halt the growth of settlements, it might give
serious attention to budgeting funds forthe repatriation of settlers and their compensation rather
than allocating such substantial fünding to the settlements and to the building of the Wall.
IX. CONCLUSION
41. The occupation of the OPT continuesto result in widespread violations of human rights,
affectingboth civil and socio-economicrights, and of international humanitarian law. Israel's
justification forthese actions is that they are necessary in the interests of its own national
security. As indicated atthe beginning of this report, the lawfulness of Israel's response is to be
measured in accordance with the principle of proportionality. The Special Rapporteur fmds it
difficult to accept that the excessive use of force that disregards the distinction between civilians
and combatants, the creation of a humanitarian crisis by restrictions on the mobility of goods and
people, the killing and inhuman treatment of children, the widespread destruction of property
and, now, territorial expansion can bejustified as a proportionate response to the violence and
threats of violence to which Israel is subjected. As stressed in this report, the construction of the
Wall within the West Bank and the continued expansion of settlements, which, on the face of it,
have inore to do with territorial expansion, de facto annexation or conquest, raise serious doubts
about the good faith of Israel's justifications in theme of security.
Notes
1
In Palestine, the term "Apartheid Wall" is frequentlyused to describe the Wall. Strictly
speaking, this historical metaphor is inaccurate as no wall of this kind was erected between
Black and White in apartheid South Africa.
2 StateComptroller,Audit Report on the SeamArea, p. 35.
3
Israeli-Palestinian Interim Agreement on the West Bank and the Gaza Strip,
28 September 1995,chap. 5, art. XXXI,para. 7.
4 Also published as Whenthe Birds Stopped Singing: Life in Ramallah Under Seige.
5 Twenty-SevenMonths - Intifada, Closures and Palestinian Economic Crisis: AnAssessment,
The World Bank West Bank and Gaza Office, Jenisalem, chap. 2, para. 2.5.
6
B'TselemNewspaper, 29 June 2003.
International Herald Tribune, 23June 2003.
The Jerusalem Post, 28 July 2003. ANNEX 7
International Covenanton civil andpoliticalRights, Concluding
ObservationsoftheanRights Committee:
Israel, 18August 1998,CCPRICI79IAdd.93United Nations HumanRights Website - TreatyBodies Database -Document - Concl ... Page 1of 5
UNITED
NATIONS
InternationalCovenant Distr.
on Civil and
GENERAL
Political Rights
CCPWCl79lAdd.93
18 August 1998
Original: ENGLISH
ConcludingObservations of the Human Rights Committee : Israel. 18/08/98.
CCPR/C/79/Add.93. (Concluding Observations/Comments)
Convention AbbrevirtiCCPR
HUMAN RIGHTS COMMITTEE
Sixty-thirdsession
CONSIDERATIONOF REPORTS SUBMITTEDBY STATESPARTIES
UNDER ARTICLE 40 OF THECOVENANT
Concludingobservations ofthe HurnanRights Committee
--rael
1.The Committeeconsidered the initialreport of Israel(CCPRlCl813)dat its 1675th, 1676thand 1677thmeetings
(seeCCPRICISR.1675-1677),held on 15and 16July 1998,and adoptedthe following concludingobservations at its
1694thmeeting (CCPRlC/SR.1694),held on28 July 1998.
A. Introduction
2.The Committee welcomesthe initialreport submitted bythe Govemmentof Israel, andnotes with satisfaction that it
was largely prepared in accordancewiththe Cornmittee'sguidelinesconceming the form and contentsof initialreports.
The Committee,however,regretsthe considerabledelay inthe submissionof the report, which was received five years
after the date onwhich itwas due.
3. The Committee notes thatthe report,whileprovidingextensiveinformation on prevailing legislation in the field of
human rights in Israel,lackssufficient informationon the implementationof the Covenant in practiceand on the factors
and difficulties impeding itseffective irnplementation. Thiswas partlyrectified by the oral informationprovided by the
delegation duringthe examinationof the report, which enabledthe Committeeto embark on a frank and constructive
dialoguewith the State Party.The Comrnitteeexpressessatisfactionthat the Govemmenthad widely disseminatedthe
report among non-govemmentalorganizationsprior to itsconsiderationby the Committee.
B.Fxtors and difficultiesaffectin? the implementation of the Covenant
4. The Committee notes the security concems inthe Stateparty, the frequentattacks on the civilianpopulation, the
problems linkedto its occupationof territories and the fact that theState party is officially at war with a number of
neighbouring States. However,the Committeedraws attentionto 4rof the Covenant, which permitsno derogation
from certain basic rights even intimes ofpublic emergency. UnitedNations Hurnan Rights Website -TreatyBodies Database -Document - Concl... Page 2 of 5
C. Positive factors
5. The Committeenotes with satisfactionthat Israeli Societyis a democraticone in which sensitive issues are openly
debated and that an activenon-govemmental communityhas taken firm root. It expressesappreciation for the wide
disseminationof the initialreport of Israel amongprofessionals inthejustice system who work directly in matters
relatingto the promotion and protection ofhuman rights and arnong non-governmentalorganizations.It welcomes
indicationsthat the inter-ministerial network of personsthat haveworked together on the drafting ofthe present report
may soonbe institutionalized.
6. The Committeewelcomes the factthatthe report includes many references to decisions ofthe Supreme Court
upholdingrights protected under the Covenant.
7.The Committeewelcomes the recent establishmentof the Public Defender'sOffice.It alsowelcomes efforts to
implementthe recommendations of the KremnitzerCommittee,which addressquestionsofpolice violence, and ofthe
GoldbergCommitteeregarding rules of evidence.It welcomesthe progressivesteps which have led to the amendment of
the Criminal Code and to the establishment ofthe Departmentfor Investigationof PoliceMisconduct withinthe Ministry
ofJustice to review complaints of maltreatrnentby members of the police and security forces. The Committee takes note
that the StateComptroller'sOfficeis responsiblefor acting as Ombudsman, and would welcome Mer informationon
its activities,particularly as regardsmeasures to combatdiscrimination.
8. The Committeenotes with satisfactionthe establishment of bodies invarious ministries to address questions relating to
the status of women, and particularlywelcomesthe activities of the Knesset Committee forthe Advancement of the
Status of Women. It also notes with satisfaction:the establishmentof anational authority onthe advancement of women
with a wide range of responsibilities;the amendment of the Equal Employment OpportunitiesLaw placingthe burden of
proof upon the employer in civil sexual harassmentsuits; and the enactment of the Equal Pay (Male and Female
Employees) Law.
D. Principal subiectsof concem and recommendations
9. The Committeenotes with regretthat, although somerights provided for inthe Covenantare legally protected and
promoted through the Basic Laws, municipal laws, andthejurispmdence of the courts,the Covenant has not been
incorporated in Israeli law andcannotbe directly invoked inthe courts. It recommends earlyaction inrespect of recent
legislativeinitiativesaimed at enhancingthe enjoyment of a number ofthe rights provided for in the Covenant, including
proposalsfor new draft Basic Laws on due process rights and on freedom of expression and association. It also
recommendsthat consideration be givento enactingfirther laws to give effect to any rightsnot already covered by Basic
Laws.
10.The Committee is deeply concernedthat Israel continuesto deny itsresponsibilityto fully applythe Covenant inthe
occupiedterritories. In this regard,the Committee pointsto the long-standing presence ofIsrael in these territories,
Lf Israel'sambiguous attitudetowards their futurestatus,as well as the exercise of effectivejurisdiction by Israeli security
-4- forces therein. In response to the argumentspresentedby the delegation,the Committee emphasizesthat the applicability
of rules of humanitarian law does not by itself impedethe applicationofthe Covenantorthe accountability of the State
under article 2, paragraph 1,forthe actionsof its authorities.The Committee is thereforeof the view that, under the
circumstances,the Covenantmust be heldapplicableto the occupied territories and those areas of southern Lebanon and
West Bekaawhere Israelexercises effective control.The Committeerequeststhe State party to include in its second
periodic report al1information relevantto the applicationofthe Covenant in territorieswhich it occupies.
11.The Committeeexpresses its deep concem at the continued state of emergencyprevailing in Israel,which has been in
effect since independence. It recommends thatthe Govemment review the necessityforthe continued renewal of the
state of emergency with a viewto limitingas faras possible its scope and territorialapplicability and the associated
derogation of rights. In this regard, the Committeedraws attention to article 4 of the Covenant,which permits no
derogation from articles 6, 7, 8 (paras. 1and 2), 11, 116 and 18,and requiresthat permittedderogations be limited to
theextent strictly required by the exigenciesofthe situation.
12.The Committeeexpresses serious concem overdeeply imbeddeddiscriminatorysocialattitudes, practices and laws
against Arab Israelis that have resulted in a lower standard of living compared with JewishIsraelis, as is evident in their
significantly lower levels of education, accessto health care, access to housing, landand employment. It notes with
concem that most Arab Israelis, becausethey do not jointhe army, do not enjoy thefinancialbenefits available to Israelis
who have served in the anny, including scholarships andhousing loans. The Committeealso expresses concern that the
Arabic language, though official, has notbeen accordedequal status in practice, andthat discrimination against members
of the Arab ininority appearsto be extensive inthe private sector. In this regard,the Committee urges the State party to
take steps without delay to ensure equalityto Arabs and to proceed as soon aspossible with the planned formulation of aUnited Nations Human Rights Website - Treaty Bodies Database -Document - Concl ... Page 3of 5
draft law on discriminationinthe private sector and to adopt it at an early date.
13.The Committee is concernedthat Palestinians in the occupiedterritories who remain under the controlof Israeli
securityforces do not enjoy the samerights and freedomsasJewishsettlers inthose territories, inparticular in regard to
planningand building permits and accessto land andwater. The Committee is also concernedatthe policies of
confiscationof lands and settlementin the occupiedterritories.The Committeerecommendsthat coordinated and
targeted efforts be made to establishbasic standards that are applicableequally to al1persons underthejurisdiction of
Israel.
14.The Committee is alsoconcemed atthe discrimination facedby Bedouins, manyof whom have expresseda desireto
continueto live in settlements intheNegev which are not recognizedbythe Israeli Government and which are not
provided with basic infrastructureand essentialservices.The Committeerecommendsthat membersof Bedouin
communities shouldbe given equality of treatment withJewish settlementsin the same region, many of which are also
dispersedand populatedby smallnumbers of people.
15.The Committee expressesconcem overthe situation of women who, despite the advances noted inparagraph 8,
continueto face discriminationinmany aspects of life,including inmilitary serviceand in religious institutions, andthat
they areunderrepresented inthe conductofpublic affairs. The Committeenotes that no clearplan of action exists which
addressesthe situationof the most disadvantaged groupof women, namelythose belongingto the Arab minority. The
Committeerecommends that targeted rneasuresbe consideredto accelerateprogresstowards equality, in particularfor
Arab women.
16.The Committeeregrets thatwomenbrought to Israel for purposes ofprostitution, many under false pretences or
through coercion,are not protected as victims of traffickingbut are likelyto be penalized for their illegal presence in
Israelby deportation.Suchan approachto this problem effectivelyprevents these women frompursuing a remedy forthe
violationoftheir rightsunder article 8 ofthe Covenant.The Committeerecommendsthat serious efforts be made to seek
out and punish the traffickers,to instituterehabilitation programmes forthe victimsand to ensure that they are able to
pursue legalremedies againstthe perpetrators.
17.With respect to article 6 of the Covenant,the Committee isconcemed aboutthe nurnber ofPalestinianswho have
been killed by the security forces,aswell asl1persons who havebeenthe victims of terrorist attacks.The Committee
expressesconcem over the use of rubber-coated metal bullets by the securityforces inthe occupiedterritories in
dispersingdemonstrations. This type of rubber bullet is reportedto have killed many Palestinians,includingchildren.
The Committeeurges the State party to enforce rigorouslythe strict limitations on the operationalrules asto the use of
firearms and the use of rubber bulletsagainstunarmed civilians.It requeststhat the next periodicreport includeprecise
information onthe number of deaths,including those caused by rubberbullets,the number of complaints arising from
their use andthe numberof defenceand security personnelthat have beenpunished or disciplinedas a result.
18.The Committee regrets the introduction by the Governmentof a draft lawwhich would deny victimscompensation
forexcesses committedby members of the securityforces againstPalestinianresidents of the occupiedterritories. It
requeststhat detailed informationon these matters be included inthe nextperiodicreport ofthe State party.
19.The Committeeis deeplyconcemed that under the guidelines forthe conductof interrogationof suspected terrorists
authoritymay be givento the securityserviceto use "moderatephysicalpressure" to obtaininformationconsidered
crucialto the "protectionof life". The Committee notesthat the part ofthe report ofthe Landau Commissionthat lists
and describesauthorizedmethodsof applying pressureremains classified.The Committeenotes alsothe admission by
the Stateparty delegation that themethodsof handcuffmg,hooding, shaking and sleepdeprivationhave been and
continueto be used as interrogationtechniques,either alone or in combination.The Committee is ofthe viewthat the
guidelines can give rise to abuse andthat the use of thesemethodsconstitutesa violation of article 7 of the Covenant in
any circumstances.The Committeestressesthat article 7 of the Covenant is a non-derogable prohibition of torture and al1
forms of cruel, inhumanor degradingtreatment or punishment.The Committeeurges the State party to cease using the
methods referred to above. If legislation isto be enacted forthe purpose of authorizing interrogation techniques,such a
lawshould explicitly prohibit al1forms of treatmentprohibited by article 7.
20. Further in relation to artic7eofthe Covenant,the Committee notesthat prisoners may be segregated in Israel as a
preventive measure for the protection of security, the maintenanceof order or to guaranteethe safety of the prisoner.
Noting that segregation involvessubstantial isolationand may be extendedover longperiodsof time,the Committee
recalls its General Comment20 (44) inwhich it notedthat prolongedsolitaryconfinement of a detained or imprisoned
person may violate article 7. The Corninittee recommends thateffortsbe made to avoid prolonged isolationof segregated
prisoners.
21. The Committee rernainsconcemedthat despitethe reduction in the number of persons held in administrative
detention on securitygrounds, persons may still be held for long andapparentlyindefiniteperiodsof time in custodyUnitedNations HumanRights Website - Treaty Bodies Database -Document - Concl ... Page 4 of 5
without trial. lt is also concemedthat Palestiniansdetained by Israeli military order inthe occupiedterritories do not
have the same rightstojudicial review aspersons detained in Israel under ordinary law.A specificconcern ofthe
Committee isthat at least some of the persons kept in administrativedetention forreasons of State security(and in
particularsome Lebanese) do not personally threaten State securitybut are kept as "bargainingchips" in order to promote
negotiations with other parties onreleasing detainedIsraeli soldiers orthe bodies of deceasedsoldiers.The Committee
considersthe present application of administrativedetention to be incompatiblewith articles 7 and 16of the Covenant,
neither ofwhich allowsfor derogation intimes of public emergency.The Committeetakes duenote that Israel has
derogatedfrom article9 ofthe Covenant. The Committeestresses,however,that a State party may not depart fkomthe
requirement of effectivejudicial review of detention.The Committeerecommendsthat the applicationof detention be
broughtwithin the strictrequirements of the Covenantand that effectivejudicial review be made mandatory.
22. While acknowledgingthe securityconcems thathave led to restrictions on movement,the Committeenotes with
regretthe continuedimpedimentsimposedon movement,which affectmostly Palestinianstravelling in and between East
Jerusalem,the Gaza Stripand the WestBank, and whichhave grave consequencesaffectingnearly al1areas of
Palestinian life.The Committeeconsidersthisto raise serious issues under article 12.Inregard to persons inthese areas,
the Committee urges Israel to respectthe rightto fieedom of movement providedfor under article 12,includingthe right
to retum to one's country.
23. In regard to Palestinianswho are resident in East Jerusalem,the Cornrnitteeis concemedthat the increasingly
restrictiveconditionsfor maintaining the right to permanentresidence, the denial ofrequestsfor farnilyreunification and
the difficulty experienced by non-Jews in obtainingbuilding permits and accommodationhave resulted in increasing
numbersbeing forcedto move to the occupiedterritories.The Committeeexpresses its profoundconcem atthe effect of
the unpublisheddirective of the Ministry ofthe Interior, under which Palestinians may losetheir right to live in the city if
they cannot provethat East Jerusalemhas been their "centreof life" for the past sevenyears. The Committeenotes that
this policy is beingappliedretroactivelyto both Palestinianswho live abroad and to those who live inthe West Bank or
innearby Jerusalem suburbs, but not to IsraeliJews orto foreign Jewswho are permanentresidents of East Jerusalem.
The Committeerecommendsthat the rules andprocedures relating to permanent residency status be appliedwithout
discrimination.
24. The Committee deploresthe demolitionofArabhomes as a means of punishment.It also deploresthe practice of
demolitions, inpart or inwhole, of "illegally" constructedArab homes. The Committee notes withregret the difficulties
imposed on Palestinian families seekingto obtain legitimateconstructionpermits. The Committeeconsiders the
demolition of homes to conflict directly with the obligationof the State party to ensurewithout discrimination the right
not to be subjectedto arbitraryinterference with one's home(art.17),the freedomto choose one'sresidence (art.12)and
equalityof al1persons before the law and equalprotectionofthe law (art.26).
25. The Cornmitteeis also concemed that the IsraelLands Administration(ILA),responsibleforthe management of 93
per cent of land in Israel, includesno Arab members andthat while the LA has leasedortransferred land for the
development of Jewish towns and settlements, fewArab localitieshave been establishedinthis way until recent years.
The Committeerecommendsthat urgent steps be taken to overcomethe considerable inequality anddiscrimination
which remain in regard to land and housing.
26. The Committeeregretsthat the authoritiesappear to be placing obstacles inthe way of familyreunion in the case of
marriagesbetween an Israelicitizen and anon-citizenwho is not Jewish (andtherefore not entitledto enter under the
Law of Return). These obstacles,which include longwaiting periods for entrypermits,a "probation"period of over five
years' residence to establishthat the marriage is genuineand aurtherwaiting period for citizenship,are applied even
more rigorously inthe case of Arab citizens, particularlythose who many persons resident inthe occupiedterritories.
The Committeeconsiders such obstacles to beincompatiblewith articles 17and 23. It is recommendedthat the
Governmentreconsider its policies with a viewto facilitatingfamily reunion of al1citizensand permanentresidents.
27. The Committee is concernedthat Arab womencitizens of Israelhave in somecases been required to relinquish their
citizenshipshould they many a Palestinian and apply for residence inthe occupiedterritories.It welcomesthe Israeli
Government'sresponsethat this policyno longerappliesandrecommendsthat those alreadyaffectedbe made fully
aware of the relevant legalprovisions and thattheirstatus be restored.
28. The Committee is concemed atthe preferencegiven to the Jewish religioninthe allocationof funding for religious
bodies, to the detriment of Muslims, Christians,Druze and otherreligiousgroups. The Cornmitteerecommends that
regulations and criteria for funding be publishedand applied to al1religious groups on anequal basis.
29. The Coinmittee is concemed that the applicationof religious law to determinemattersof persona1status, including
marriage and divorce, andthe absence of provisionfor civilmarriage effectivelydeny somepersonsthe right tozmany in
Israel, and result in inequalitybetween men and women. It is also concerned that the minimum ageofmarriage for girls,
fixed by law at 17,may be reduced by the religiouscourts,andthat no minimum age is fixed for men. The lack ofUnited Nations HumanRights Website - TreatyBodiesDatabase - Document - Concl ... Page 5of 5
provision forcivilburial is also amatter of concern.TheCommitteeurgesearly implementationof measurescurrently
underconsiderationto facilitatecivilmarriages and civilburialforthosewho do not belongto areligion. It recommends
thatthe Stateparty takeintoaccount internationalstandardsfortheageofmajority in itscurrentreview of the minimum
marriageableageformen andwomen.
30.The Committeerecommendsthatthe Govemmentconsiderratifyingthe OptionalProtocolto the Covenant.
31.The Committeerequeststhat the Govenunent of Israel submit itssecondperiodic report,whichis dueby June 2000.
It also requeststhatthe nextreport include informationon the implementationofthe Covenantin al1lands overwhich
Israel exercises effectivecontrolduringthe periodcoveredbythereport.
32. The Committeerecommendsthe publicationand distributionof the concludingobservationsof the Committeeto
public bodies,media agencies,and non-govemmentalorganizationsworkingin the areaofhumanrights.
O1996-2001
Office of the United Nations HighCornrnissionerfor Hurnan Rights
Geneva, Switzerland ANNEX 8
International Covenanton civil and political Rights, Concluding
Observations the Human Rights Committee:
Israel,1August 2003, CCPR/CO/7SR1 United Nations HurnanRights Website -Treaty Bodies Database - Document - Concl... Page 1of 4
UNITED
NATIONS
InternationalCovenant Distr.
on Civil and GENERAL
Political Rights
CCPRlCOl7UISR
21 August 2003
Original: ENGLISH
Concluding obsen/ations of the Human Rights Committee : Israel. 21/08/2003.
CCPR/CO/78/ISR. (ConcludingObservations/Comments)
Convention AbbreviatioCCPR
HUMAN RIGHTS COMMITTEE
Seventy-eighthsession
CONSIDERATION OF REPORTSSUBMITTEDBY STATES PARTIES
UNDER ARTICLE40 OF THE COVENANT
Concludingobservationsofthe Human Rights Committee
Israel
1.The Committeeconsideredthe secondperiodicreportof IsraelCPWClISR/200112)at its 2116th,2117thand 2118th
meetings (see CCPWClSR.2116-2118),held on 24 and 25 July 2003, and adopted the followingconcludingobservations
atits 2128t-2130thmeetings (CCPWClSR.2128-2130),held on 4 and 5 August 2003.
A. Introduction
2. The Committeewelcomesthe second periodicreport submittedby Israel and expresses its appreciationfor the frank
and constructivedialogue with a competentdelegation.It welcomes the detailed answers, both oral and written, that were
\ provided to its written questions.
B. Factors and difficultiesaffectingthe implementation of the Covenant
3. The Committeehas noted and recognizes the serious securityconcems of Israel inthe context of the present conflict,
as well as the difficult human rights issues relatingto the resurgence of suicide bombings which havetargeted Israei's
civilian population sincethe beginning of the secondintifada in September2000.
C. Positivefactors
4. The Committee welcomesthe positive measures and legislationadopted by the State party to improve the status of
women in IsraeliSociety,with a view topromotinggenderequality. In this context, it welcomes in particularthe
amendmentto the Equal Rights for WomenLaw (2000),the Employment of Women Law (Amendment 19),the adoption
of the SexualHarassment Law (1998), the Prevention of StalkingLaw (2001), the Rights of Victims of an Offence Law
(2001), and other legislativemeasures designedto combat domestic violence.It alsowelcomesthe establishment of the
Authority for the Advancement ofthe Statusof Womenbut would appreciatether, up-to-date informationon its
responsibilities and functioning in practice.
5. The Committeewelcomes the measurestakenby the State party to combattrafficking in women for the purpose of
that date.on, in particularthe Prohibition on TraffickingLaw enacted in July 2000 and the prosecution oftraffickers since
6. The Coininittee notes the efforts to increase thelevel of educationforthe Arab. Druze and Bedouin coilîmunities in UnitedNations Human Rights Website - Treaty Bodies Database -Document -Concl... Page 2 of 4
Israel.In particular, it notes the implementationofthe SpecialEducation Law and the CompulsoryEducationLaw
Amendment(2000).
7. The Committeealso notes the State party'sinformationaboutthe significantmeasures taken for the development of
the Arabsector, inparticularthroughthe 2001-2004DevelopmentPlan.
8. The Committeewelcomes legislation adoptedby the State party in respect ofpersons with disabilities, inparticularthe
enactment ofthe Equal Rights for People with Disabilities Law (1998). It expressesthe hope that those areas where the
rights of disabled people, acknowledgedby the delegation as not beingrespected and requiringfurther improvements,
will be addressed as soon aspossible.
9 The Committeenotes the efforts by the Stateparty to provide better conditionsformigrantworkers. It welcomes the
amendmentto the Foreign Workers Law andthe increase in penalties imposed onemployersfor non-compliance with
the law. Italso welcomes free access to labour courts for migrant workers andthe provision of informationto them about
their rights in several foreign languages.
10.TheCommitteewelcomes the Supreme Court'sjudgement of September 1999which invalidatedthe former
govemmentalguidelinesgoveming the use of "moderatephysicalpressure" during interrogations andheld that the Israeli
SecurityAgency (ISA) has no authority under Israeli law to use physical force during interrogations.
D.Principalsubjects of concem and recomrnendations
11.TheCommitteehas notedthe Stateparty'spositionthat the Covenant does not apply beyond itsown territory, notably
inthe West Bank and in Gaza, especially as long asthere is a situationof armed conflict in these areas. The Committee
reiteratesthe view,previously spelled out in paragraph 10 of its concludingobservations on Israel's initialreport
(CCPRlCl79lAdd.93 of 18August 1998),thatthe applicabili~ of the regimeof intemationalhumanitarian law during an
armed conflict does not preclude the applicationofthe Covenant, includingarticle 4 which covers situations of public
emergencywhich threaten the life of the nation.Nor does the applicability of the regime of internationalhumanitarian
lawprecludeaccountability of Statesparties under article2, paragraph 1,ofthe Covenantforthe actionsof their
authoritiesoutsidetheir own territories,including in occupiedterritories. The Committeethereforereiteratesthat, inthe
currentcircumstances,the provisions ofthe Covenantapply to the benefit ofthe population of the OccupiedTerritories,
for al1conductby the Stateparty's authoritiesor agents in those territoriesthat affectthe enjoyment of rights enshrined in
the Covenant and fa11withinthe ambit of Stateresponsibility of Israel under the principlesofpublic international law.
The State party shouldreconsider itsposition and to include in itsthirdperiodicreport al1relevant information
regarding the applicationof the Covenant inthe OccupiedTerritoriesresulting from its activities therein.
12.Whilewelcomingthe State party'sdecisionto review the need to maintain the declaredstate of emergency and to
prolong it on a yearly rather than an indefinitebasis, the Committeeremains concemed about the sweepingnature of
measures during the state of emergency, that appear to derogate from Covenantprovisionsother than article 9,
derogation from which was notified by the State party upon ratification. In the Committee'sopinion, these derogations
: extend beyond what wouldbe permissible under those provisions ofthe Covenantwhich allow for the limitation ofrights
'i (e.g. articles 12,paragraph 3; 19,paragraph3 and; 21, paragraph 3). As to measures derogating from article 9 itself, the
Committee is concemed aboutthe frequentuse of various formsof administrativedetention,particularly for Palestinians
fromthe OccupiedTerritories, entailingrestrictions on access to counsel andto the disclose of full reasons of the
detention.These features lirnitthe effectivenessofjudicial review, thus endangeringthe protection againsttorture and
other inhumantreatment prohibited under article 7 and derogating fiom article 9 more extensivelythan what inthe
Committee's viewis permissible pursuantto article 4. In this regard,the Committeerefers to its earlierconcluding
observations on Israel andto its generalcommentNo. 29.
The Stateparty should completeas soon aspossiblethe review initiated by the Ministry of Justice of legislation
goveming states of emergency. In this regard, and pendingthe adoptionof appropriatelegislation,the Stateparty
shouldreview the modalities governingthe renewal of the state of emergencyand specifi the provisions of the
Covenantit seeks to derogate from,to the extent strictlyrequired by the exigencies of the situation(art. 4).
13The Committee is concemed that theuse of prolonged detentionwithout any accessto a lawyeror other persons of
the outsideworld violates articles the Covenant(arts. 7, 9, 10 and 14,para. 3 (b).
The State party should ensurethat no one isheld for more than 48 hours without accessto a lawyer.
14.The Committee is concerned about the vaguenessof definitions in Israeli counter-terrorism legislationand
regulationswhich, althouglitheir applicationis subjecttojudicial review,appearto run counter to the principle of
legality in several aspects owing to the ambiguouswording of the provisions and the use of several evidentiary United Nations Human Rights Website -Treaty BodiesDatabase - Document -Concl... Page 3 of 4
presumptionsto the detrimentof the defendant. Thishas adverseconsequenceson the rights protected under article 15of
the Covenant, which is non-derogableunder article4, paragraph2, of the Covenant.
The Stateparty shouldensure that measures designedto counteracts ofterrorism,whetheradopted in connection
with SecurityCouncilresolution 1373(2001) or inthe contextofthe ongoingarmedconflict, are in full
conformitywith the Covenant.
15.The Cominitteeis concemed by what the Stateparty calls "targeted killings"ofthose identified by the State party as
suspectedterrorists in the Occupied Temtories. This practice wouldappearto be usedat least in part as a deterrent or
punishment,thus raising issues under article6. Whilenotingthe delegation'sobservationsaboutrespect for the principle
of proportionality inanyresponse to terrorist activities againstciviliansand its affirmationthat only persons taking direct
part in hostilitieshave been targeted, the Committeeremains concemed aboutthenature and extent ofthe responses by
the IsraeliDefence Force (IDF) to Palestinian terrorist attacks.
The Stateparty should notuse "targetedkillings"as a deterrentorpunishment.The State party should ensure that
the utmost considerationis given to the principle ofproportionalityinl1its responses to terrorist threats and
activities.State policy inthis respect should be spelledout clearly in guidelinesto regional military commanders,
and complaintsabout disproportionate use of force shouldbe investigatedpromptlyby an independent body.
Before resortingto the use of deadly force, al1measuresto arresta person suspected of being in the process of
committingacts ofterror must be exhausted.
16.Whilefullyacknowledgingthe threat posed by terroristactivities in the OccupiedTerritories, the Committee deplores
whatit considersto be the partly punitivenature ofthe demolitionof property and homes in the Occupied Territories. In
the Committee'sopinionthe demolitionof property andhouses of families some ofwhosemembers were or are
suspectedof involvementin terrorist activities orsuicide bombings contravenesthe obligation of the State party to
ensurewithout discriminationthe right not to be subjectedto arbitraryinterference with one'shome (art. 17),freedom to
choose one'sresidence (art. 12),equality of al1persons beforethe law and equalprotection of the law (art. 26), andnot to
be subjectto torture or crueland inhuman treatment(art 7) .
The Stateparty shouldcease forthwiththe abovepractice.
17.The Committeeis concemed aboutthe IDF practice inthe OccupiedTerritoriesof using localresidents as
"volunteers"or Shieldsduring military operations,especially in orderto searchhouses and to help secure the surrender of
those identifiedby the State party as terrorist suspects.
The Stateparty shoulddiscontinuethis practice, whichoftenresults in the arbitrarydeprivation of life (art. 6).
. 18.The Committeeis concemed that interrogationtechniques incompatible witharticle7 of the Covenant are still
reported frequentlyto be resorted to and the "necessitydefence"argument, which isnot recognized under the Covenant,
isoften invoked and retainedas ajustification for ISA actions inthe courseof investigations.
The Stateparty shouldreview its recourse to the "necessitydefence"argument and provide detailed information
to the Committee in itsnext periodicreport, includingdetailedstatisticscoveringthe period since the
examinationof the initialreport. It should ensurethat alleged instancesof ill-treatment andtorture are vigorously
investigatedby genuinelyindependent mechanisms, and thatthose responsiblefor such actions are prosecuted.
The Stateparty should provide statistics fi-om2000 to the present dayon how many complaintshave been made
to the Attorney-General, how manyhave been tumed down as unsubstantiated,how many have been tumed down
because the defenceof necessityhas been applied and howmany have been upheld, andwith what consequences
forthe perpetrators.
19. Whileagain acknowledgingthe seriousness ofthe Stateparty'ssecurityconcems that have prompted recent
restrictions on the right to freedom ofmovement, for examplethrough impositionof curfews or establishment of an
inordinatenumberofroadblocks,the Committee is concemed that the constructionof the "SeamZone", by means of a
fenceand, in part, of a wall, beyond the Green Line, imposesadditionalandunjustifiablysevere restrictions on the right
to freedom ofmovementof, in particular,Palestinians within the OccupiedTerritories.The "Seam Zone" has adverse
repercussions onnearly al1walks of Palestinian life; in particular,the wide-rangingrestrictions on freedom of movement
disrupt accessto healthcare, includingemergency medical services, and accessto water. The Committeeconsiders that
these restrictions are incompatible witharticle 12of the Covenant. ANNEX 9
Commission on Human Rights, Question of the Violation of
Human Rights in the Occupied Arab Territories,including
Palestine, Report of the High Cominissioner on her visit to the
occupied Palestinianterritories, Israel, Egypt and Jordan
(8-6 November 2000), ElCN.41200114,29 November 2000 UNITED
NATIONS
Economicand Social Distr.
GENERAL
Council
E/CN.4/2001/114
29 November 2000
Original: ENGLISH
COMMISSIONON HUMAN RIGHTS
Fifty-seventhsession
Items and 8 ofthe provisionalagenda
REPORTOF THEUNITEDNATIONSHIGH COMMISSIONER
FOR HUMAN RIGHTSAND FOLLOW-UPTO THE WORLD
CONFERENCEONHUMANRIGHTS
QUESTIONOF THEVIOLATIONOF HUMANRIGHTS IN THE
OCCUPIED ARAB TERRITORIES, INCLUDINGPALESTINE
Report ofthe High Commissioneron her visitto the occupied Palestinian
territories.Israel,andJordan(8-16November 2000)
GE.OO-15946(E) CONTENTS
Paragraphs Page
1. INTRODUCTION ............................................. 1- IO
II. OUTLINEOF THEHIGH COMMISSIONER'SVISIT TO
THE REGION .......................................................1 - 18
III. GENERALOBSERVATIONS .....................................19.-.24....
IV. HUMAN RIGHTS SITUATIONIN THE OCCUPIED
PALESTINIANTERRITORIES ....................................5 - 64..
v. VISIT TO ISRAEL ..................................................................
VI. VISIT TO EGYPT ....................................................................
VII. VISITTOJORDAN ...............................................8..-89.......
VIII. CONCLUSIONSAND RECOMMENDATIONS ............ 90 - 97
Annex Programme of the visit inthe occupiedPalestinianterritories
and Israel............................................................
........................... 1. INTRODUCTION
1. The General Assembly andthe Commissionon HumanRights have been seized of the
situation ofhuman rights in the occupied Palestinianterritories for many years. Since late
September, however, there has beena dramatic deterioration ofthe human rights situation inthe
occupied territories.
2. By a letter dated 3 October 2000, addressed tothe UnitedNations High Coininissioner
for Human Rights,the Permanent Representative of Algeriato the United Nations Office at
Geneva, on behalfof the Council of Arab Permanent Representativesof Members of the League
of Arab States,requested thata special sessionofthe Commission be convened"to discuss the
grave and massive violations ofthe human rights ofthe Palestinianpeople by the Israeli
occupying power".
3. In the light ofthe agreement ofa majority of its members,the Commission onHuman
Rights convenedin its fifth special session from17October to 19October 2000.
4. On 19October 2000,the Commission onHumanRightsat its fifth special session,
adopted resolution S-511(E/2000/112-EICN.4lS-515c ,hap. II), in which it decided interalia to
request the UnitedNations High Commissioner for Human Rightsto undertake an urgent visit to
the occupied Palestinian territoriesto take stock ofthe violationsof the human rights ofthe
Palestinian peopleby the Israeli occupying Power, to facilitatethe activities ofthe inechanisms
of the Coinmission in implementationof the resolution, to keepit informed of developments and
to report tothe Commissionat its fifty-seventh session and, onan interim basis,to the
General Assemblyat its fifty-fifth session. On 22November 2000,the Economic and Social
Council, in its decision 20001311,endorsed the resolution adopted bythe Corninissionat its fifth
special session.
5. The mandateof the High Commissioner forHumanRights requires her to proinote and
protect the effective enjoymentby al1of al1civil, cultural, economic, political andsocial rights;
to enhance internationalcooperation forthe promotion and protectionof al1human rights; to
engage in a dialogue with al1Governments witha viewto securing respect foral1human rights;
and to carry outthe tasks assigned to her bythe competentbodiesofthe United Nations system
in the field ofhumanrights. The High Commissioner is also mandatedto report on her activities
to the Commission on Human Rights,the Economic and Social Council and tothe
General Asseinbly.
6. Mindful ofthese aspects of her mandate, the High Commissioner forHuman Rights
undertooka visit to the Middle East from 8to 16November 2000. During her mission, she
visited the occupied Palestinian territories, Israel, EgyptandJordan. This report to the
Commission on Human Rights summarizesthe outcomeof hermission.
7. The High Cominissioner'svisit to the occupiedPalestinianterritories took placeat the
urgent request of the Commissionon HumanRights and becauseof the seriousness ofthe human
riglitssituationthere at the present time.8. With regard to her visit to Israel,the High Commissioner,in cooperation withthe Israeli
authorities, undertook a visit that had been scheduled at anearlier stage butthat had been
postponed. The visit to Israel focused on general cooperation on human rights issuesas well as
on the situation in the occupied Palestinian territories.uring her visit to Israel, the Israeli
authorities expressly accepted,in a meeting between the High Commissioner andsenior Foreign
Ministry officials on 15November 2000, thatthe High Commissioner's report on her visitto the
region would also deal with the visit to Israel.
9. The visits to Egypt and Jordan were undertaken primarilyin view ofthe situation inthe
occupied Palestinian territories. From that perspective,the discussions with leadersin those
countries are reflected inthis report.
10. In submitting this report,the High Commissioner for Human Rights is conscious of the
evolving situation in thearea, attentiveto the efforts of the Secretary-Generalofthe
United Nations and othersto promote peace, and to the importanceofthe quest for peace with
justice and respect forhuman rights, and mindful of the duty of conscience regardingthe
situation ofhuman rights prevailing inthe occupied Palestinian territories. It is inthis spirit of
conscience that this reportis submitted.
II. OUTLINE OF THEHIGH COMMISSIONER'S VISITTO THE REGION
Il. The programme ofthe High Commissioner's visit tothe region, including listsof those
with whom she met, is annexed tothe present report. The following is a brief summary.
12. In Gaza, the High Commissionerinet with the President ofthe Palestinian Authority
and Chairman of the Executive Committeeof the Palestine Liberation Army (PLO),
Mr. Yasser Arafat, senior representatives ofthe Palestinian Authority (PA), representativesof
theNGO community,the Chairmanof the Palestinian Independent Commission forCitizen's
Rights and with representatives ofUnitedNations programmes, funds and agencies, including
the Commissioner General of the United Nations Relief and Works Agency for Palestine
Refugees inthe Near East (UNRWA) andthe United Nations Special Coordinator. The High
Cominissioner visitedthe largesthospital in Gaza, ShifaHospital, and met with 45 patients,
including children, injuredoverrecent weeks, as well as medical staff and family members. She
travelled tothe Rafah refugee camp near the Egyptian border, visited sites affected bythe recent
violence, including several UNWRA schools; visited a healthcare centre, and viewed
settleinents and military installations.
13. In East Jerusalem,the High Coinmissioner met with representatives ofthe Muslim and
Christian communities as well as of NGOs, Palestinian officials and a delegation of expatriate
volunteers. Slievisited Hebron, Ramallah and El-Bireh, whereshemet withthe Speaker and
other members ofthe Palestinian Legislative Council as well as with Ministers ofthe PA. In
Ramallah, the High Commissionervisiteda refugee camp, includinga school, and, in El-Bireh,
met with representatives ofNGOs, anda delegation of schoolchildren.
14. In Israel, the High Commissioner discussed the recent human rights developments in
Israel and the occupied Palestinianterritorieswith the Presidentof Israel, Mr. Moshe Katzav,the
President ofthe SupremeCourt, Chief Justice Aharon Barak, the MinisterofJustice,Dr. Yossi Beilin,the Director General of the Ministry of Foreign Affairs, Dr. Alon Leal and
other senior officials, senior officials of the Ministry of Defence, represeiîtatives of the Israeli
Defense Forces (IDF), the Israeli member ofthe United Nations Human Rights Committee,
representatives of NGOs, academics and Israeli settlers froinGilo, and international and local
staff of United Nations agencies.
15. In Cairo,the High Cominissioner met with the Minister for Foreign Affairs of Egypt,
Mr. Amr Musa, with senior officials of the Ministry of Foreign Affairs and with representatives
of NGOs. Shealso met with the Secretary General of the League of Arab States,
Dr. Ismat Abdel-Maguid.
16. In Aminan, the High Commissioner was received by His Royal Majesty King Abdullah II
of Jordan and met with the Deputy Prime Minister, Mr. Ahmed Khleifat, and the
Secretary General ofthe Ministry of Foreign Affairs, Mr. Shaher Bak.
17. In all,the High Cominissioner heard the views of several hundred people, many of whom
spoke fiom persona1experience of the present human rights situation. The High Commissioner
also received several dozen written submissions and briefs, which have been considered in the
preparation of this report. The High Commissionerwishes to record her appreciation and thanks
to al1those with whom she met and to the Governments,authorities and United Nations
representatives which received her and facilitated her mission.
18. It was a difficult mission, addressing highly politicized and complex situation with
serious human rights implications. At each meeting in boththe occupied Palestinian territories
and Israelthe High Commissioner emphasizedthe integrityof her mandate, the objectivity of her
approach, andthat her focus would be on the human rights implications of what she saw and
heard and of what was represented to her by the various parties she met.
III. GENERAL OBSERVATIONS
19. The human rights situation in the occupied Palestinianterritories is bleak. The civilian
population feelsbesieged by a stronger power prepared to use its superior force against
demonstrations and stonethrowing by adolescents. Duringthe course of the visit the violence
escalated, with more shooting - including so-called drive-by shootings - on the Palestinian side
and the use of rockets and heavy machine-gun fire on the Israeli side. At each meeting in the
occupied Palestinianterritories pleas for internationalprotection or for some form of
international monitoring presence were voiced.
20. In the occupied Palestinian territories, discussionsconcerning the present crisis and its
impact on human rights were linked to the reality of the occupation itself. That reality was
described by Palestinians as one of grinding, petty humiliations, discrimination and inequalities
which were ultimately dehumanizing. It was explainedthat the anger and frustration ofthe
present Intifada stemmed from lack of implementationof the key United Nations resolutions,
especially General Asseinbly resolutions 181(II) and 194(III) and Security Council
resolution 242 (1967), the continuing encroachment on land for settlements, and what was
perceived as a peace process which had not addressedthe Palestinian claims of a State with
East Jerusalem as its capital and soine recognition of the right of return of refugees.21. Perhaps the strongest and most troubling impressiontaken away by the
High Coinmissioner from her visit to Israel and the occupied Palestinian territories was that of
two peoples who are linked by history and geography, but are currently separated by a wide and
growing gap in their perceptions of each other. The violence of recent months has resulted in a
hardening of positions, with little willingness on either sideto understand or acceptthe narrative
of the other.
22. Amongst Israelis there is a preoccupation with security, born of a strong sense of
isolation and of being set upon fiom al1sides. This can easily be understood in terins of Israeli
and Jewish history. However, it is not appreciated or allowed for by a Palestinian people who
see only Israel's ovenvhelming military superiority and experience its readiness to use it.
Israelis with whom the High Commissioner met, includingmany who deeply believe in the
peace process, said they felt shell-shocked by the recent breakdown of negotiations at a time
when, to thein, a coinprehensive settlement had seemed so close. Amongst Palestinians, on the
other hand, the predominant sentiment was that the process of the past seven years had delivered
little or nothing to them. Whilst Israelis point to the building of economic links as a positive
sign, Palestinians see the same process as increasingthe dependence of the occupied territories
and their vulnerability to exploitation by Israel during periods of crisis.
23. The High Commissioner was offered different views about the origins of the present
cycle of violence, includingon the significance of the visit of Mr. Ariel Sharonto the
Temple Mount/Haram Al-Sharif, and on whether the current intifada is a spontaneous popular
uprising or an orchestrated strategy. The High Commissioner referred repeatedly to her
inandate, which addressesthe underlying human rights causes ofthe conflict. Such ail approach
acknowledges the long-standing and unresolved grievances of the Palestinian people, inany of
whom are now third-generation refugees. It must also be understood, as it is by inany Israelis,
that Palestinians, includingArabs who have Israeli citizenship, have suffered and continue to
suffer from serious discrimination. An inescapable conclusion is that much of the present
situation has to do with the daily reality of life under the occupation, includingwhat Palestinians
see as the numerous daily humiliations imposed upon them, often deliberately, but sometimes
through bureaucratic indifferencetowards people who lack political power. However, in
discussing root causes, it must also be acknowledged that over an extended period the right of
Israelis to "security of person" (Universal Declaration of Human Rights, article 3) has been
threatened. This persistent insecurity has given rise to many of the problems which now lie at
the heart ofthe human rights situation in the occupied Palestinian territories and Israel.
24. A related problemis that of hate speech and inciteinent. Numerous examples were cited
to the High Commissioner during her visit and evidence was clearly visible on the walls of
Palestinian houses and Israeli settlements. The High Commissioner was struck, for example, by
the deep hurt caused by the accusation that Palestinian parents were forcing their children into
the line of fire to achieve martyrdom. Similarly, she was shocked by calls broadcast on
Palestinian television and radio urging the killing of al1Jews. At this very difficult time it is
incumbent upon leaders on both sides to avoid inciting racial and religious animosities and to
condemn such incitementwhen it does occur within their communities. The High Coinmissioner
believes that the forthcoming World Conference against Racism, Racial Discrimination,
Xenophobia and Related Intolerance will provide an opportunity for reflection and
reconciliation, which political leaders and ineinbers of civil society alike sliouldbegin to prepare
for. IV. HUMAN RIGHTS SITUATION INTHE
OCCUPIEDPALESTINIAN TERRITORIES
25. While in the occupied Palestinianterritories, the High Coinmissioner received
information from numerous sources alleging serious violations of human rights, both in relation
to recent events and more long-term systematic abuses originating from the occupation itself.
Also allegedwas a failure on the part of Israelto adhere to international humanitarian law, in
particular the 1949Fourth Geneva Convention relative to the protection of civilians in tiine of
war, whose applicability to the occupied territories has been repeatedly reaffirined by
United Nations bodies, includingthe SecurityCouncil, the General Asseinbly and the
Commission on Human Rights. Particular areas of concern with regard to recent developments
included: excessive and disproportionate use of force, includingalleged attacks on medical
personnel; the arbitrary destruction of property; the effects on Palestinian residents of Israeli
settlement activity, including restrictions on freedom of movement; the serious econoinic impact
on the residents of the occupied territories; the violations of the human rights of children; and
restrictions on access to humanitarian assistance.
Excessive use of force
26. The inost persistent allegation brought to the attention of the High Commissioner was
that Israeli security forces have engaged in excessive force, disproportionate to the threat faced
by their soldiers. A wide range of observers, including United Nations representatives,
expressed the strong view that the very high number of casualties, combined with the nature of
the injuries being sustained, includingby young people, could only be consistent with a military
response which was both excessive and inappropriate. With only minor regional variations, this
pattern was, said the observers, repeated in different locationsthroughout the affected areas.
27. The High Commissioner had requested a meeting with the Israeli Defense Forces (IDF).
The meeting was facilitated by Israel and took place at Ben Gurien Airport on 13November
prior to her flight to Cairo. It is described in some detail in paragraphs 66to 71 below but, as it
offered an opportunity to hear the Israeli perspective on the allegations of excessive use of force,
the relevant coinments or a reference to the relevant paragraphs are inserted in the present
section of the report.
28. In anattempt to disperse the demonstrations, the Israeli military authorities have used
live ammunition, rubber coated steel bullets and tear gas, al1of which have resulted in deaths and
injuries amongst the Palestinians. Heavier weapons have also been used, including rockets fired
by infantry and from helicopters, armoured vehicles which have been deployed throughout the
Gaza Strip and the West Bank, and heavy machine guns. The use of heavy weapons has raised
the incidenceof death and injury amongst non-combatants and, indeed, several such deaths
occurred during the period of the High Commissioner's visit.
29. A high percentage of the injuries sustained by Palestinianshave been to the upper part of
their body, includinga large number of eye injuries, somecaused by the firing of "rubber"
bullets at close range. The result is often the loss of an eye,but can also be severe brain damage
or death. In subsequent discussions senior IDF representatives accepted the potential lethalness
of "rubber" bullets, and also that of tear gas, if used in a confined area, as has been alleged.30. When asked about the reported injuries, senior IDF officers told the High Coinmissioner
(see paras. 69-70 below) that the methods and weapons einployed by the IDF in dealing with the
present crisis are carefully calibrated according to the nature of the threat being faced and, in
particular, that live fire, whether from small arms or heavier weapons, has only been directed at
those who have used firearms or petrol bombs in attacks against Israeli forces.
31. While in the Gaza Strip,the High Commissioner visited ShifaHospital, the largest
hospital in Gaza with 650 beds and 8 operating theatres. The High Commissioner met
with 45 patients, including boys and girls under 18and their relatives. A 15-year-old,now a
paraplegic, informed the High Commissioner that he was shot by Israeli soldiers while he was
demonstrating and throwing stones in the industrial zone close to Erez checkpoint. He had
joined other teenagers after school to express his anger following the death of one of his
schoolmates the previous day. A 14-year-oldwounded in the arm and leg explained that he had
gone to throw stones in revenge after a classmate had been shot and blinded in both eyes, and the
doctor accompanying the High Commissioner confirmed he had treated this other boy. The High
Commissioner heard numerous anecdotal accounts of shootings involving Palestinians who, it
was said, could not have been involved in any form of protest activity, for example, an elderly
man who was shot twice near the door of his house and a pregnant woman who was shot whilst
on the roof of her house. See paragraphs 69 and 70 below for the IDF response on rules of
engagement and child casualties.
32. The Minister of Health of the Palestian Authority, Dr. Riadh Al-Zaanoun, told the High
Coinmissioner that by his estimates some 6,958 persons (3,366 in the West Bank and 3,592 in
the Gaza Strip) had been wounded duringthe period 29 September-9November 2000 and
that 1,O16Palestinians had been injured in Israel. Of those injured, he said, 40 per cent were
under the age of 18. According to the Minister, the types of ammunition responsible for injuries
were as follows: rubber bullets (41 per cent); live bullets (27 per cent); tear gas (27 per cent);
and others, including rockets (11per cent).
33. The Palestinian Red Crescent Societyestimates that 236 Palestinians were killed
and 9,353 injured during the period 29 September-23November. During the
period 27 September-23November, Israeli officia1sources estimate that 30 Israelis
were killed and 375 were injured. Estimates are disputed by the parties.
Impact on children
34. According to the Red CrossIRedCrescent, as of 20 November, 86 children (aged 18and
under) had been killed and over 3,000 injured,two to three hundred of whoin, it is estimated,
will have permanent disabilities. Accordingto the same source, hundreds of Palestinian children
have been obliged to abandon their homes in order to escape the violence. The destruction of
family dwellings has left more than a thousand children witho'uthomes, often in situations of
food shortage and without access to medical care.
35. The current situation in the WestBank and Gaza Strip has had a serious impact on the
Palestinian education system. The High Commissioner visited two schools inthe Gaza Strip and
one school in Rainallah where she was briefed by teachers on the consequences of the current
situation for Palestinian pupils. Shewas told that sincethe begini~ingof October morethan 40 schools have been closed or are unable to operate owing to curfews or closures. Otlier
schools, such as one visited by the High Commissioner inthe Gaza Strip,have been damaged by
gunfire and the premises abandoned, requiring that severalthousand children be fitted into other
schools if possible.
36. In discussions with directors of preparatory schools and educators, as well as delegations
of children in Gaza and Ramallah, the High Commissioner was told that many children suffer
from psychological and social problems as a direct consequence of the current situation.
Children themselves explained to the High Commissioner their fear of leaving their homes or, in
some cases, of going back to their homes, andof difficulties sleeping. According to UNICEF,
oiily about 1per cent of adolescents in Gaza have actually engaged in demonstrations or attacks
against lsraeli military positions. However,teachers have reported that the rest of the students
who have remained at their studies have nevertheless been mentally distracted or emotionally
affected by the events in the street, with the result that their educational performance has
deteriorated.
Medical personnel
37. An aspect of particular concern is the allegation that the inedical condition of inany of the
victims has suffered, with some deaths, as a consequence of their being denied access to timely
medical assistance. Reportedly, Palestinian ambulances and medical personnel have been
prevented from discharging their normal responsibilities. During the High Cominissioner's visit
to Gaza, her vehicle was unable to proceed along the main north-south road because of an
exchange of gunfire on the road ahead which had lefttwo lsraeli soldiers at a checkpoint
seriously wounded and two Palestinians dead in their vehicle. The High Commissioner
witnessed the fact that two ambulances were not permittedto attend to the Palestinian casualties.
38. Very serious allegations were made of attacks by Israeli security forces on medical
personnel and ambulances. The High Commissionerwas informed about the case of a
Palestinian Red Crescent Society ambulance driver, Bassam Al-Balbisi, wlio had been killed
while trying to approach 12-year-oldMohammad Al-Dura and his father in order to move them
into anambulance. According to Palestinian officials, 45 ambulances had been attacked by
Israeli forces in Jerusalem and the West Bankand 23 in the Gaza Strip. The High
Coinmissioner was told that nine ambulanceshad been putout of service owing to damage
between 29 Septeinber and 9November.
Destruction of property
39. In the Gaza Strip,the High Commissioner visited Rafah refugee camp and surrounding
areas where shewas able to inspect a number of private houses and apartments that had been
heavily damaged by gunfire andlor rocket attack, particularly at night. The owner of one house
in Rafah told the High Commissionerthat she had been obligedto leave her house, witliin a few
minutes, when she realized that an Israelitank had already started to destroy part of the house.
A farm owner told the High Commissionerthat Israeli soldiersliad destroyed his greenhouses
and his family residence during the night of 29 October. Water wells have reportedly also been
destroyed in actions carried out by settlers or Israeli forces. The High Commissioner saw that aE/CN.4/2001/114
page 10
number of fields of fi-uit-bearingtrees, particularly olive trees, had been cleared in the occupied
regions. The High Commissioner was told that, in many cases, these orchards and fields
represented the entire livelihood of dozens of families.
40. According to the IDF (see sect. V below), the clearances and demolitions were carried
out as matter of military necessity becausethese structures or plantations had been used as cover
by Palestinian gunmen. The IDF told the High Commissioner that the doctrine of military
necessity meant that compensation was not payable in these circumstances. Israeli officials told
the High Commissioner that military action carried out in the Palestinian areas often took place
at night, because this was the time when Palestinian gunfire most often occurred.
Settlements
41. At the best of times relations between Israeli settlers and Palestinians are extremely
sensitive and tense. At times of crisis the settlements can become a catalyst for violence.
Amongst the main concems raised by the Palestinian interlocutors were the privileged position
settleinents enjoy with respect to land and water for domestic and agricultural use, the negative
impact on surrounding Palestinian communities, the fact that settlers are heavily armed and live
in barrier-enclosed areas protected by the IDF and that separate roads have been created for
settlers alone which are prohibited to Palestinians. The concerns raised with the High
Commissioner by three Israeli families living in Gilo whom she met at Ben Gurion Airport
on 15November are set out at paragraph 71below.
42. In Gaza, Israeli installations to protect settlements there are located on the main road
through Gaza and have become the focus for stone throwing and shooting by Palestinians, with
severe retaliation by the Israeli military. It was strongly represented to the High Coinmissioner
that ifthese military installations and heavy armoury were to move off the highway and closer to
the settlements being protected this could easetension. The IDF analysis was that the protection
role could only be discharged from the present positions (see paras. 69-70 below).
43. Following her visit to the refugee camp at Rafah the High Commissioner was driven
along a seulement road and was surprisedto be shown further expansions of settlements taking
place.
44. The High Commissioner visitedthe city of Hebron, one of the biggest administrative
units in the occupied Palestinian territories in terms of area and population, and went into the
Israeli controlled part of Hebron known as H2 in the Companyof officials of the Teinporary
International Presence in Hebron (TIPH). Sincethe first week of October, the IDFhas imposed
a curfew on 30,000 Palestinians living in the H2 zone, which has had an enonnous impact on the
enjoyment by Palestinian residents of their basic human rights. As a result of the curfew,
thousands of families and their children liveunder virtual house arrest, confined to their homes
for al1but a few hours per week. During the hours when the curfew is not imposed the use of
motor vehicles by Palestinian residents is forbidden, requiring residents to walk considerable
distances to purchase food supplies, as shops in the Hebron H2 zone are also affected by the
curfew. E/CN.4/2001/114
page 11
45. Workers fromthe Hebron H2 zone have been prevented from reaching their places of
work, whether in Israel or in the occupied territories. Restrictions on freedoin of movement
inake it increasingly difficult forthe Palestinians inthe H2 zone to meet their most basic needs,
such as food supplies and medical care, and Palestinian children cannot attend school. In this
regard, the High Commissioner was informedthat 32 schools had been closed since the
beginning of the events, preventing some 15,000pupils from exercising their right to education.
46. The curfew does not applyto the 300to 400 Israeli settlers living in the H2 zone of the
city and the settler school remains open. To ensure the safety of those settlers, the IDF maintains
a large presence in that part of Hebron (700 soldiers accordingtothe IDF; 2,000 according to
another source). Three schools and several Palestinian houses in the H2 zone have been taken
over by the IDF and turned into military posts.
47. At a meeting with the Mayor of Hebron, the Minister for Transport and other officiaisin
the Hl zone of Hebron (underthe Palestinian Authority), the High Commissioner was told that,
since October, 20 Palestinians had been killed in Hebron, of whom 5 were under 18years of age,
and that inany houses, stores and facilities had been damaged,without compensation.
Allegations were made that settlers were involved in violence against and harassment of
Palestinian residents, with the tacit consent of the IDF.
48 IDF representatives told the High Cominissioner that their presence was necessary to
securethe safety of the settler community, which had beensubjectedto regular fire from
Palestinian gunmen.
Freedom of movement
49. An effective closure of the occupied territories has been appliedsince the beginning of
October and the movement of the population there continuesto be heavily restricted. The High
Coininissioner's own travel between Israel andthe occupiedterritories, and within the occupied
territories, afforded an opportunity to assessthe immediate impactof these restrictions. It was
noted that, while road closures impact heavily on Palestinians,there exists a parallel road
network, established by the Government of Israel, ltnownas the by-pass roads, exclusively for
the use of Israeli settlers and the authorities, enablingthem to travel freely.
50. In discussions with senior IDF representatives,the High Commissioner called for a lifting
or easing of the closures. The response fiom the senior officer responsible for IDF operations in
the occupiedterritories was that the closures were a necessary security measure. An explicit
linkage was drawn between the closures and the release in October, by the Palestinian Authority,
of some 80 prisoners who had been held in Palestinian custody and who are considered by the
Israeli authorities to pose a major securitythreat to Israel. The High Coinmissioner was told that
if the Palestinian Authoritywere to re-incarcerate these 80prisoners then the closures would be
lifted the same day.ElCN.4120011114
page 12
Freedom of religion
51. The High Coinmissioner met Muslim and Christian leaders representingthe Palestinian
and Armenian communities in East Jerusalem. Theytold the High Commissioner thatthe Israeli
authorities continuedto deny Palestinians full access to holy sites, includingthe Al-Aqsa
Mosque andthe Church of the Holy Sepulchre.
52. Sincethe beginning of October, accessto the Al-Aqsa Mosquehas been deniedto
Muslims, even religious leaders,underthe age of 45 years. As a result, only one tenth of the
usual number of worshippers currentlyhave accessto Al-Aqsa. Representatives of both
communities expressedthe wish to have full responsibility for their own holy places, which is
currently denied bythe Israeli authorities. They complained alsoof disrespectful behaviour by
Israeli troops stationed at the holy sites. In discussingthe need for religious tolerance,they
explained to the High Commissioner their shared visionof Jerusalem as encompassing "one city,
two peoples andthree religions" andstressed'theuniversal character ofthe city andthe necessity
to maintain its spiritual soul.
53. The High Commissioner relayed these views to the Israeli authorities in her subsequent
discussions with them. In particular, she expressed her concern that restrictionson access to the
holy sites could resultin increasedtension duringthe coming month of Ramadhan. The lsraeli
authorities toldthe High Commissionerthat the restrictionswere necessary to prevent armed
extremists from occupyingthe holy sites,which would necessitate an Israeli militaryresponse.
They argued that the degree of control over holy sites currently givento Palestinians was greater
than that which had beenaccordedto Jewish communities priorto the creation of the State of
Israel. In some cases where Palestinianshad beenentrusted with the protection of holy sites,
such as Joseph's Tomb, these siteshad subsequently been desecrated.
Economic impact
54. The United Nations developmentand humanitarian agencies operatingin Jerusalem and
Gaza provided comprehensive briefingsto the High Commissioner onthe impact that the current
situation, particularlythe closures, ishaving on theenjoyinent by Palestiniansof their econoinic
rights and their right to development. They explained thatthe seriousnessof the economic
situation required that theyput developmentprogrammes on hold and concentrate on emergency
response and relief.
55. Approximately 128,000Palestinian workers, normally employedin Israel, are currently
barred from travelling to their workplaces. The movementof Palestinians within theoccupied
territoriesis severely restrictedunderthe strict interna1closure iinposed,for instance, onthe
various parts ofthe West Bank.
56. According to the Israeli Ministry of Defence figures,the restrictions affect20 per cent of
the Palestinian workforce and some 35per cent oftotal salary income. Accordingto the Office
of the United Nations Special Coordinator, uneinploymenthad tripled sincethe beginning of
October, which translatesinto a lossof household incoineof soine 10to 11million dollars ElCN.4120011114
page 13
per day. While most reports indicated that there were adequate supplies of food within the
occupied territories, the means with which to purchase food, medicines and other basic
necessities are rapidly becoming exhausted as affected families use the last of their savings.
57. United Nations studies also report a 50 per cent reduction in normal economic activity
within the territories themselves. Restrictions on the inovement of Palestinians within the
West Bank have had economic consequences. Another serious factorhas been the restriction on
the import of raw materials, particularly cement. The ban on the movement of cement has
effectively brought construction, normally the single largest industry in the occupied territories,
to a standstill.
58. According to a Ministry of Defence briefing provided to the High Commissioner, loss of
confidence among Israelis has also had a major effect on economic conditions in the occupied
territories. In 1999,some 100,000Israelistravelled to the territories for cominercial reasons,
generating income of $500 million. Cooperative projects in industrial zones along the "green
line" between Israel and the territories had resulted inthe completion of 25 factories but since
the start of the intifada, three of these factories have been burned andan industrial estate
attacked, with the result that investor confidence has plummeted. The Ministry representatives
also stated that the effects of the closures have been exacerbated in some cases by the reluctance
of Palestinian Authority officials to cooperate with Israeli security processes at border
checkpoints.
59. According to an International Monetary Fund (IMF) briefing provided to the High
Coinmissioner, a factor which has aggravatedthe economic impact of the closures and other
restrictions has been the failure of the Israeli authoritiesto make available to the Palestinian
Authority in a timely manner certain tax revenues owedto itunder existing agreements, which
has affectedthe capacity of the Palestinian Authority to pay salaries to its employees.
60. Although the adverse economic consequences of the current situation are being felt most
acutely in the occupied Palestinian territories, they have also had a negative impact on the Israeli
economy.
Huinanitarian access
61. Access is a major preoccupation for al1humanitarianorganizations operating in the
occupied territories. Of particular concern are the restrictions imposed on the movement of
United Nations localPalestinian staff, who make up the vast majority of United Nations
einployees in the occupied territories.
62. The High Coinmissioner was informed that because of the closures, ernergency
evacuation of seriously injured civilians for treatment abroad is difficult. Restrictions on access
also affect the import of donations of humanitarian goods and equipinent from abroad. Imports
into Gaza involveunloading ofthe cargo of every truck originating from Israel at the
Gaza/West Bank entry checkpoints and reloading ont0 other trucks for onward delivery.
United Nations agencies have reported difficulties in obtaining clearance for emergency health
kits.ElCN.4120011114
page 14
63. The Ministry of Defence indicated that it was doing everything possible to facilitate
humanitarian access to the occupied territories. During October alone, the Ministry
representatives said, requests from some 80 countries had been processed in relation to medical
supplies, blankets and sophisticated hospital equipment. A special coordination centre had been
set up in order to bypass the usual bureaucratic channels and close liaison had been established
with the Palestinian Authority.
64. The High Commissioner, in her subsequent discussions with senior IDF representatives,
raised the specific issue of UNRWA medical suppliesthat had been blocked in Jerusalem. The
IDF representatives indicated that this type of cargo should not be the subject of any restriction
and they undertook to facilitate its delivery.
V. VISIT TO ISRAEL
65. The High Commissioner's visitto Israel allowed her to address general human rights
issues and hear the views of a wide range of Israeli citizens and organizations, both Jewish and
Arab. However, given the current situation, most discussions focused on the human rights
situation in the occupied territories. The following paragraphs reflect the Israeli perspective on
the situation.
Excessive use of force
66. On 13November, following her visits to Gaza, Hebron and Ramallah, the
High Commissioner discussed, with the Israeli authorities,the use of force by the IDF and
other security forces. The High Commissioner expresses her appreciation for the very frank and
informative meeting with the senior IDF officers responsible for security, intelligence, legal
issues, weapons development and public affairs, which the government facilitated.
67. The IDF oficers outlined their view of the genesis of the present situation - a view which
was shared by other Israeli government oficials. In brief, the view was put that the current
intifada had been launched as a deliberate strategy ofthe Palestinian leadership. On offer at
Camp David had been a Palestinian State,with reference made to both a right of return and a
negotiated division of Jerusalem. According to the IDF, the Palestinian leadership, unwilling to
inake the difficult political compromises required, had ignited what it hoped would be a "CNN
war" in which Palestinian losses would rally the support of the Muslim world and sway public
opinion in the West. The aim was to increase internationalpressure on Israel to make further
concessions. The ultimate goal was a Kosovo-style intervention force to protect "Palestinian
territory", rather than "Palestinian people", thereby achieving a resolution without having to go
to the negotiating table.
68. In terms of the pattern of the violence, the IDF officers described as typical a situation
which coinmenced with stonethrowing but which quickly escalated into armed attacks.
Whereas the previous intifada had almost exclusivelyfeatured stone throwers, who were dealt
with using riot control techniques, the Palestinians were now armed and many incidents featured
a lethal mix of stone throwers and shooters. It was stated that out of 5,085 attacks on lsraeli
settlements, some 1,400had involved live fire, includingmachine gun fire or the use of
firebombs. ElCN.4120011114
page 15
69. The IDF officers said that, according to their rules of engagement, attackers who use live
aminunition could be shot by soldiers and sharpshootersdeployed for that purpose.
Nevertheless, they said, the IDF was only using 2 per cent of its military force. The High
Commissioner was told that most of those killed overrecent weeks had been armed attackers,
shot after opening fire on Israeli positions. Soine, however, had been killed in the crossfire, by
one side or the other. Asked about the number of child casualties,the LDFofficers responded
that they were unable to indicate ages and numbers as the IDF generally had no access to the
dead and wounded on the Palestinian side. However,they felt that the nuinbers reported were
exaggerated and told the High Commissioner that the Tanzeem militia recruited and armed
children.
70. Asked why the IDF reportedly often resortsto the use of live ammunition instead of
non-lethal weapons, the IDF officers indicated that the militarytactics being employed against
them influencedthe types of weapons the IDF couldemploy. They explained to the
High Commissionerthat Israel was concerned to reduce the number of casualties. So-called
less-than-lethalweapons (which can still kill at shortranges or high concentrations) such as
plastic coated bullets,tear gas and water cannons are only effective at a range of 50-100 metres.
But at this range troops are vulnerable to live fire. The IDF have overthe last few months
field-tested dozens of weapons but have concluded that less-than-lethalweapons effective to a
range of 200 inetres do not currently exist. As a consequence,new weapons systeins are being
developed which, the IDF hope, will soon be deployedto control crowds effectively at longer
ranges with little or no risk of serious injury.
71. Before leaving Israel on 15November, the High Commissioner met at Ben Gurion
Airport with three families from Gilo, a Jewish settlementon the outskirts of Jerusalein, who
described nightly gunfire directed at their homes froin a neighbouring Palestinian area. They
also expressed concern that this resulted in heavy retaliationby the Israeli side, causing an
intolerable situationfor al1civilians. They had had goodrelations with their Arab neighbours
and were appalled at how the situation had deteriorated. Their families had lived in Gilo for
upwards of 20 years and they did not see themselves as settlers. They urged the need to stopthe
violence and return to political dialogue.
Investigations; compensation for damage
72. Matters which the High Commissioner pursuedwith IDF representatives were the issue
of how the use of lethal force was investigated by the IDF,what punishments were available for
iinproper or excessive use of such force, and how many investigationshad been conducted to
date and with what result.
73. Shewas told that, unlike the situation duringthe previous intifada, when the Israeli army
was in full control ofthe occupied Palestinian territories,there was currently no policy of routine
investigation into the use of lethal force. Investigationscould, however, be carried out internally
ifthere was a particular reason to suspect that improperconduct had taken place. It was
explained that that decision had arisen from the IDF evaluatingthat the current situation could be
described as a stateof "active warfare". Inthat situationthe rules of war applied and soldiers
were not requiredto account for each shot fired. In any case,the IDF representatives said, the
nuinber of shots being fired made such a policy impractical. Reference was also made to theE/CN.4/2001/114
page 16
practical difficulties of investigating incidents inreas under Palestinian Authority control.
Another consequence of the IDF decision about the state of "active warfare" was that
compensation would no longer be made for the military use of private property, as it had been in
the past. Asked about the destruction of houses and orchards in the occupied Palestinian
territories, the IDF representatives advised the High Commissioner that there was no question of
compensation as, under the rules of war, those areas had been cleared as a matter of military
necessity because they had been used as cover by Palestinian gunmen.
74. The IDF representatives added that the new assessment of their current legal situation
would normally also affect their own rules of engagement. In the present case, however, a
decision had been taken to maintain the same rules of engagement as applied in previous
intifada, in order not to increase the number of casualties. The IDFrepresentatives madethe
point that double standards were being applied in relation to the Palestinian side which was not
under international scrutiny about its rules of engagement or its policy on investigating shootings
and violations of human rights. The IDF representatives referred to the lynching of two Israeli
soldiers in Ramallah.
Situation of Arab Israelis
75. The situation of Arab Israeli citizens was raised at a meeting between representatives of
Israeli NGOs and the High Commissioner as a specific human rights problem, albeit one which
could not be entirely separated fiom the general situation in the occupied territories.
Representatives of a number of Israeli NGOs indicated that Israeli Arabs, who represent
20 per cent of the State's population, had faced decades of neglect and discrimination on the part
of the Israeli authorities.
76. Representatives of the Ministry of Foreign Affairs told the High Commissioner that the
Government of Israel was taking measures to promote the integration of Israeli Arabs into Israeli
society and to guarantee their rights as full citizei~s.Most Israeli interlocutors, including
officiais, acknowledged, however, that Israeli Arabs had suffered disadvantage and
discrimination and that there was still soine way to go in achieving full equality forthat
community. The President of the Supreme Court, Chief Justice Aharon Barak, briefed the
High Commissioner onjudicial action taken by the Supreme Court with respect to issues of
equality, including decisions grantingArabsthe right to purchase land in Israel. He also outlined
the liberal approach adopted by his court concerning issues such as standing andjurisdiction in
civil cases, which enabled NGOs to bring suits on behalf of aggrieved persons.
77. Most of the Arab Israelis whom the High Commissioner met described their situation as
one of exclusion, prejudice, official hostility and routine humiliation. Since 28 September,
however, the threat of violence which has engulfed many of their coinmunities has become the
primary concern of Arab Israelis. There was a sense of frustrationthat their problems were
perhaps less well recognized than those of Palestinians living in the occupied territories.
78. Arab IsraeliNGO representatives told the High Commissioner that, following the Street
demonstrations that took place in Arab cities and villages in Israel at the end of September and
beginning of October,the security forces had responded with brutality and excessive force, using
live ainmunition, tear gas and plastic coated bullets, in contrastto the more moderate tactics ElCN.4120011114
page 17
einployed against Jewish protesters. This had ledto the deaths of 13Arab Israeli citizens. Many
more had been injured and more than 1,000arrested. A particular concern was the manner in
which detention policy was being implemented. Many arrests, including of minors, were being
carried out during night-time raids on homes. Once arrested,Arab detainees, including minors,
were, according to these sources, far more likelyto be held in custody without bail until the
conclusion of their trials. It was asserted that this pattern was the result of a deliberate policy of
discrimination against Arab Israelis on the part ofthe Attorney General's Officeand the State
Prosecutor's Office. Itwas further asserted that this policy extendedto appealing every decision
to release Palestinian detainees, which did not applywhere Jewish detainees were concerned.
Concern was expressed that the courts had largelyacquiescedto these policies, with the result
that largenumbers of young Arab Israelis remained in detention. This issue was raised by the
High Commissioner with the State Attorney Generalwho indicatedthat she would look into the
situation of young detainees.
Israeli Commission of ~nquiry
79. On 11November, the Government of Israel decidedto establish a State commission of
inquiryto inquire intothe clashes, since 29 September,between the security forces and Israeli
citizens in which 13Arabs were killed and hundredsof people injured. The Commission,
coinposed of three inembers, will be chaired by ajustice of the Supreine Court. The Judicial
Commission of Inquiry Law gives this Commission full powerto subpoena and obtain
information from anyone it deems may be ableto assist in its inquiry. Witnesses who testify
before it enjoy full immunity. Its mandate isto investigatehow the events developed, determine
the facts and draw conclusions. The Commissionof Inquirywill decide for itself whether to
publish its findings. It will not address cases which occurred in the occupied Palestinian
territories or cases involving non-Israeli citizens.
80. SomeArab Israeli NGOs have welcoinedthe establishment ofthe Cominission of
Inquiry, while regretting that tiine was lost bythe Government in establishing initially a inore
limited "examining committee". Others have expressedscepticism as to whether it will
cdequately addressthe issues.
National human rinhts commission
8 1. Recent events in Israel have underlined the need to strengthen national mechanisins for
the protection and promotion of human rights, especially in the area of non-discrimination. In
this context, the High Commissioner noted the positive steps being taken towardsthe
establishment of an independent national human rights commission.
82. Duringthe High Commissioner's meetingwith the Minister of Justice and representatives
of civil society such as liuman rights lawyers,academics and experts, the Minister reiterated his
coinmitment to establish a human rights commission. He mentionedthat the Minerva Center for
Human Rights at the Hebrew University of Jerusalem had undertaken to carry out research on
national human rights institutions and to recommend a mode1for an Israeli institution. In the
first stage of the project, the research team examined internationalguidelines and the legislativeE/CN.4/20011114
page 18
and administrative structure, function and modes of operation of human rights institutions in
other countries. The NGO community had also been consulted when the proposa1was being
drawn up and their concerns, ideas and suggestions had been discussed with the research team.
83. Following these consultations the research team will prepare a draft report which will be
distributed for coinments among governinent officials, academic institutions and the NGO
community. The final proposal, which will incorporatethe responses on the draft report, will be
presented to the Minister of Justice by March 2001. The High Commissioner was advised that
the proposal will include recommendations on the relationship between the human rights
commission and the Parliament and the Government, as well as existing executive bodies, such
asthe State Comptroller, the Ombudsman and the recently established Commission for Equal
Rights for People with Disabilities. The final report will present the arnendments needed to
current legislation and recommend draft implementing legislation.
84. The High Commissioner offered the services of her SpecialAdviser on National Human
Rights Institutions to assistthe Government in its efforts towards the establishment of a national
commission. On 17November, the High Commissioner wrote to the Minister of Justice
reiterating this offer.
VI. VISIT TO EGYPT
85. The High Commissioner visited Egypt to discuss with senior officials and the
Secretary General of the League of Arab Statesthe human rights situation in the occupied
Palestinian territories and the follow-up to the fifth special session of the Commission on
Human Rights.
86. In Cairo, the High Commissioner met with the Minister for Foreign Affairs,
Mr. Amr. Musa, together with senior officials of the Ministry of Foreign Affairs. The
Minister briefed the High Coinmissioner on steps taken by Egypt at the political level
to assist in resolving the present conflict, including implementation of the agreement reached at
Sharm El Sheikh. He expressed his Government's deep concernat the continuing deterioration
ofthe situation in the occupied Palestinian territories and the impact it was having on the
Palestinians. Inthis regard he raised the question of Israel'scornpliancewith the Fourth Geneva
Convention and referred to the necessity to implementthe decisions taken during the fifth special
session. The High Commissioner briefed the Minister on her visit and, in response to the
concerns expressed with regard to access for humanitarian aid, the High Commissioner informed
the Minister that she had made representationsto the Israeli authorities concerning access for
huinanitarian relief supplies destined for the occupiedterritories.
87. During the High Cominissioner's meeting with the Secretary General ofthe League of
Arab States, Dr. Ismat Abdel-Maguid, the latterreferred to the concerns expressed in Arab
countries with regard to the situation of the Palestinians and stepstaken by the ineinbers of the
League of Arab States followingtheir meeting in Cairo on 19October. He expressed his
appreciation of the High Commissioner's decisionto visit Israel and the occupied Palestinian
territories at a very difficult time. He also declaredthe readiness of Arab countries to support the
resolution adopted at the fifth special session and indicatedthat he was looking forward to its
iinplementation. E/CN.4/2001/114
page 19
VII. VISIT TO JORDAN
88. In Jordan, the High Commissioner was received by His Royal Majesty King Abdullah II.
He expressed deep concern about recent developments in Israel andthe occupied territories and
mentioned that Jordan was sparing no efforts to assist both parties in the iinplementation of the
decisions agreed upon in Sharm el Sheikh. In terms of humanitarian assistance, King Abdullah
described the extensive relief programme put in place by Jordan, including a hospital in the
West Bank.
89. In a separate meeting with the Deputy Prime Minister and with senior officiais fiom the
Ministry of Foreign Affairs, the High Coinmissionerwas made aware of Jordan's concern about
current events, particularly giventhe strong ties behveenthe Jordanian and Palestinian peoples.
VIII. CONCLUSIONS AND RECOMMENDATIONS
90. The High Commissioner came away fiom her visit deeply concerned about the serious
deterioration of the human rights situation in the occupiedterritories and Israel and at the terrible
cost in terms of human lives. It is vital that both parties renew effortsto halt the current
dangerous escalation.
9 1. Mindful of the urgent and widespread calls for internationalprotection made to her
during her visit to the occupiedterritories, the High Commissionerbelieves that every effort
should be made to explore the feasibility of establishingan international monitoring presence.
92. The only path to lasting peace and stability isthrough peaceful negotiation, which calls
for courage and responsibility on the part of the leadership of bothdes. When she met with
Chairman Arafat in Gaza on 15November, the High Commissioner asked hiin if he would
publicly cal1for an endto the shooting by Palestinians. Later the same day he called on
Palestinians to stop firing on Israeli targets from zone "A" of the occupied territories. In
discussions with senior IDF officers, the High Commissioneralso urged a withdrawal of Israeli
military forces fiom some of their forward positions and a lowering of the military profile in the
occupied territories. She continues to believe that some specific steps in that direction by the
IDF could help to break the present cycle of violence.
93. The High Commissioner believes that a peaceful and stable future in the region can only
be achieved on the basis of a framework conformingto the requirements of international human
rights and humanitarian law. Full application of the internationalhuman rights standards set out
in the Universal Declaration of Human Rights and the two Human Rights Covenants is essential.
94. The High Commissioner recalls that the GeneralAssembly and the Coinmission on
Human Rights have repeatedly reaffirmed the de jure applicabilityof the 1949 Fourth Geneva
Convention relativeto the Protection of Civilians in Time of Warto the occupied Palestinian
territories. Article 1of the Convention places a duty on al1the High Contracting Parties "to
respect and to ensure respect" of the provisions of the Convention"in al1circumstances". It
would be appropriate for the High Contracting Partiesto assumetheir responsibility under the
Convention.E/CN.4/2001/114
page 20
95. Another way in which the international community can assist is through the work of the
task force established under the terms of the Sharm El Sheikh Agreement.
96. The High Commissioner would urge that the following specific steps be taken in order to
stopthe escalation of violence:
The security forces of both sides should act in full conformity with the Code of Conduct
for Law Enforcement Officiaisand the Basic Principles on the Use of Force and Firearms
by Law Enforcement Oficials. Whenever force is used the principle of proportionality
has to be applied and al1necessary measures have to be taken to avoid loss of life or
injuryto civilians or damage to civilian property.
The construction of new settlements should cease and those located in heavily populated
Palestinian areas should be removed. As well as protecting settlers, the Israeli security
forces should also protect Palestinians from violence perpetrated by Israeli settlers.
Al1cases of the use of lethal force on both sides should be investigated and subjected to
the processes ofjustice in order to avoid impunity.
Compensation should be provided to the victims of unlawful use of force, including for
the loss of property.
Curfews should be imposed only in extreme circumstances and as a last resort. In no
case should curfews be used as a punitive measure. In cases where a curfew is imposed,
it should be done in consultation with the local communities with a view to liiniting the
adverse impact on the human rights of those affected.
The enjoyment of economic rights within the occupied Palestinian territories, including
the right to development, should be protected.
Al1holy sites and access to them by al1faiths should be respected.
The Israeli authorities should ensure freedom of movement of international and national
staff of United Nations agencies and facilitate access by them to those in need of
assistance.
Cooperation with the United Nations agencies is vital to ensure effective huinanitarian
assistance in the occupied Palestinian territories.
97. The High Commissioner will:
Continue, through her office in the occupied Palestinian territories, to assist the
Palestinian Authority to build up its institutional capacity in the area of the rule of law;
Offer the services of her Special Adviser onNational Human Rights Institutions to assist
the Government of Israel in its efforts towards the establishment of a national human
rights coinmission; ElCN.4120011114
page 21
Provide the necessary secretariat support for actions undertaken by the Cominission on
Human Rights, and its mechanisms, in the implementationof the resolution adopted at its
fifth special session;
Stand ready to facilitate dialogue between the human rights bodies of Israel and the
Palestinian Authority, Palestinian and Israeli NGOs, and other representatives of civil
society in order to enhance mutual understanding;
Urge the international community to supportthe work of United Nations agencies in the
occupied Palestinian territories and, in this context, contribute generously to the different
resource mobilization initiatives currently under way includingthose of the World Food
Programme, UNICEF, the World Health Organizationand UNRWA.ElCN.4120011114
page 22
Annex*
PROGRAMME OF THE VISIT IN THE OCCUPIED
PALESTINIAN TERRITORIES AND ISRAEL
A. Visit tothe occupiedPalestinian territories
1. Meeting with membersof the PalestinianAuthority
Mr. Yasser Arafat, President
Mr. Tayeb Abdel Rahim, Ministerof Presidential Affairs
Mr. Freih Abu Middain, Ministerof Justice
Mr. Zouhdi Nashashibi, Ministerof Finance
Mrs. IntissarAl Wazir,Ministerof SocialAffairs
Dr. Riyadh Al-Zaanoun, Ministerof Health
Mr. YoussefAbu Safia,Ministerof Environment
Mr. Abdul Rahman Hamad, Minister of Housing
Mr. Ziyad Abu Zayyad, Minister of Jerusalem Affairs
Mr. Rafeeq Natshah, Ministerof Labour
Mr. AliAl Qwasma, Minister of Transportation
Mr. Tala1Sadr, Minister without portfolio
Mr. Ahmad SaidTamimi,Acting Minister ofthe Interior
Mr. Ibrahim abu Dhaga, PresidentialAdviser for HumanRights
Mr. Ahmed Soboh, Assistantto the Ministerof Planning and International Cooperation
(MOPIC)
Ms. Samia Bamia, Director,UnitedNations and International Organizations,Ministryof
Planning and International Cooperation
2. Meeting with membersof the PalestinianLegislativeCouncil
Mr. Ahmed Qurai, Chairman
Mr. QadurahFaris, Head ofthe Oversight andHumanRights Committee
Mr. GhasiHanania, Deputy Speaker
Mr. JamalAl Showbaki, Member
Mr. Suleyman Abu Snaina,Member
Mr. Abdul Jawad Saleh,Member
Mr. Azmi Shouaibi, Member
3. me et in^with members of the Palestinian Independent Commission for Citizen's Rights
Dr. Hayder Abed-Elshafi, Commissioner General
Dr. SaidZeydani, GeneralDirectorin Ramallah
* The annex isreproducedinEnglish only. ElCN.4120011114
page 23
4. Meetings with other Palestiniaofficiaisacademics and representatives of civil society
Mr. Mustafa AbdelNabi Al-Natshah,*Mayorof Hebron
Dr. Fathi Arafat,hairmanofthe PalestinianRed Crescent Society
Dr. SariNusseibeh, President of Al-Quds Universityin Jerusalein
Dr. Ali Jirbawi, Head, Political Science Department, Birzeit University and
Project Coordinator forHuman Rights Issues, Education Department, UNRWA
Dr. HananAshrawi,Meinberofthe Palestinian Legislative Counciland
Secretary-Generalof Global Dialogue and Democracy ("Mifiah")
Mr. SulaimanAl Najjab,Memberof the ExecutiveCominitteeof PL0
In addition,the High Commissioner met with rallies of childrenin Gaza and in El Bireh
(Ramallah), a delegationof expatriate volunteersin East JerusalemattheNDP office,
as well as other Palestinian civilians (refugees, displaced persons, farmers, educators,
doctorsand schoolteachers).
5. Meeting with PalestinianNGOs atthe office ofthe UnitedNations Coordinatorin the
Occuvied Territories(UNSCO),Gaza (1 1November 2000)
Democracy and Workers Rights
Centre forEconomicand Social Rights
Al Mizan CentreforHumanRights
Palestinian Centre forumanRights
Palestinian SocietyforHuman Rights
The Palestinian Association for Legal Sciences
Addameer
Gaza Centre for RightsandLaw
Mashriqqyiat
CulturalandFree Thought Centre
Tamer Institutefor Community Education
Red Crescent Society
Gaza CommunityMental Health
National Rehabilitation Society for Handicapped
Women Affairs Technical Committee
General Unionof Palestinian Women
WomenAffairs Centre
Palestinian Hydrologist Group
Palestinian Bar Association
Union of PalestinianMedicalRelief CommitteesE/CN.4/2001/114
page 24
6. Meeting with Palestinian NGOsinEast Jerusalemat the UNDP office
(12November 2000)
Rawdat-E-Zuher
St. John Eye Hospital
Jerusalem Centre for Economicand Social Rights
Gender Planning Development
Palestinian CounsellingCentre
Union of Health Work Committees
Palestinian Prisoner Society
Makassed Society in Jerusalem
ECRC-PNGO
Jerusalem Centre for Women
ArabThought Forum
Palestinian Society forthe ProtectionofmanRights and Environment (LAW)
Adameer Association
Land Research Centre
PalestinianHumanRights Monitoring Group
Palestinian Academic Society for the Studyof International Affairs (PASSIA)
Palestinian Agriculture Relief (PARC)
Medical Relief Committees/Jerusalem
Al-Haq
Early Childhood Resource Centre
7. Meeting with Palestinian NGOs. El-Bireh, Ramallah(13 November 2000)
Birzeit Law Institute
Bisan Centre for ResearchandDevelopment
Association of Women for SocialWork
Women Union Centre
Union of Women Centres -Palestine
Palestinian Bar Association
Jerusalem Legal Aid Centre
Jerusalem Centre forWomen
PNGO Network
Association ofPalestinian Local Authorities
Woinen's Studies Centre
Women's Centre for Legal Aid and Counseling
Al-Haq
Law Society
Arab ThoughtForum/CitizenRights Centre
Defence for ChildrenInternational/PalestinianSection
Palestinian Happy Child Centr- PHCC
Adameer E/CN.4/2001/114
page 25
Guidanceand Training Centre forthe Child andFainily
Palestinian Motherand Child Care Society
General Unionof DisabledPalestinians
Palestinian Working Women Society
Freedoms Defence Centre
Democracy and Workers'Rights Centre
ResourceCentre forPalestinian Residency andRefugeeRights (BADIL)
Treatrnentand Rehabilitation Centre for Victims of Torture
Mandela InstituteforPolitical Prisoners
8. Meeting with representativesof the Musliin,Christian andArmeniancommunities,
East Jerusalem (12November 2000)
Mr. Ramzi Zananiri, Executive Director
Near East Christian Council Committee for RefugeeWork,JerusaleinIWestBank
Mr. Harry Hagopian
Executive Director, Middle East Councilof Churches
Convenor, Jerusalem Inter-Church Committee
Legal Consultant, London,UnitedKingdoin
Fr. Raed Abusahlia
Chancellor ofthe Latin Patriarchate
Secretary of Patriarch Michel Sabbah
BishopAris Shirvanjan
Directorfor Ecumenicaland Foreign Relations of
the ArmenianPatriarchate, Jerusalem
Dr. Mustafa Abu Sway
Director
Islamic Research Centre
Al-QudsUniversity
Jerusalem
Sheikh IkramaSaidSabri
GeneralMufti of Jerusalem and Palestinian territories
Preacher of Al-Aqsa Mosque
SheikhYaakoubKarrach
Directorof Islam FiqhCentre
and member ofthe PalestinianNational CouncilE/CN.4/2001/114
page 26
9. Locationsvisited by the High Commissionerinthe occupiedPalestinianterritories
A. Gaza Strip
Erez checkpoint
Shifa Hospital
Netzarimjunction
Al-Mazra'a school in DeirEl-Balah,opposite KfarDarom settlement
Affected housesnearthe border fencein Rafah
Rafah HealthCentre
Rafah preparatory girls school
Uprooted fanns near Morajesettlementin Rafah
B. West Bank
East Jerusalem
Ramallah
El Bireh
Hebron withthe Temporary InternationalPresencein Hebron (TIPH)
Jalazonrefugee camp
Jalazon preparatoryboys school
10. Meeting with United Nations officiais
Mr.Terje R. Larsen, United Nations Special Coordinator forthe Middle East peace
process andPersona1Representative ofthe Secretary-Generalto the PL0 andthe PA
Mr. Peter Hansen, Commissioner General of UNRWA
Mr. Timothy Rothermel,UNDP, Special Representative ofthe Administrator
In addition, the High Commissioner met with representatives the following
UnitedNations bodies and agenciesin Gaza:
Office forthe Coordination of Humanitarian Affairs
International MonetaryFund
United Nations Children'sFund
UnitedNations DevelopmentFund for Women
United Nations Development Programme
World Food Programme
World Health Organization E/CN.4/2001/114
page 27
11. Meeting with staff ofthe Office ofthe High Commissioner for Huinan Rightsinthe
occupied Palestinian territories (Gazaandthe WestBank)
Mr. Amin Medani,Director, Chief TechnicalAdviser
Mr. SaberNairab, HumanRightsOfficer(Gaza)
Mr. Ammar al Dwaik, HumanRights Officer (West Bank)
Ms. WijdanJaber, Administrative Assistant
Ms. Einan Fathi, Secretary
Mr. Fawzi Al Akra'a, Logistics Officer
B. Visit toIsrael
H.E. Mr. Moshe Katzav, President ofthe State of Israel
The Hon. Aharon Barak, President ofthe Supreme Court
Mr. YossiBeilin,Minister of Justice, together with the following guestsat a lunch
hosted by him:
Mr. Shlomo Gur, DirectorGeneral,Ministryof Justice
Mrs. Edna Arbel, State Attorney
Mrs. Osnat Mandel, Acting Director,HighCourt of Justice Division, State Attorney's
Office
Ms. Tamar Gaulan, Director, Foreign Relationsand International Organizations,
Ministryof Justice
Mr. Daniel Levy, Senior Advisorto the Ministerof Justice
Mr. Ainir Avramovitch,Media Advisorto the Minister of Justice
Ms. Rachel Harris,legalintern
Ms. Colette Avital, Memberof the Knesset
Mrs. ZehavaGal'on,Member ofthe Knesset,Head ofthe Meretz parliamentary faction
Mrs. Pnina Herzog, President, International Counselof Women
Prof. David Kretzmer, member of theUnitedNations Huinan RightsCoinmittee
Prof. Mordechai Kremnitzer, Israel Democracy Institute
Prof. Ruth Gavison, Faculty ofLaw, Hebrew University
Dr. Daphna Sharfman,Chair, Political ScienceDepartment, Western Galilee College
Dr. Eddy Kaufman, Board Member, HumanRights Watch, Middle East
Mrs.Orna RabinotritchPundak, former Chairperson,Amnesty International,
Israeli Section
Mr. Moshe Negbi, political commentator
Mr. David Peleg, former Permanent Representative,Permanent Mission of Israel to the
UnitedNationsat Geneva
Mr. Mordechai Yedid, DeputyDirectorGeneral, InternationalOrganizations,
Ministryof Foreign Affairs
Mr. YaakovParan,Director, Huinan Rights Department, Ministryof Foreign Affairs
Mr. Zeev Lurie,Deputy Director, Huinan Rights Departinent, Ministryof Foreign AffairsE/CN.4/2001/114
page 28
Dr. Alon Leal,Director General of the Ministry for Foreign Affairs and other senior officials
of the Ministry
Major General Eiland and senior officersofthe Israeli Defense Forces (IDF)
General Ya'acov Or, IDF Coordinator for the Territories, and otherDF officials
Familiesfroin Gilo community
Ms. Naomi Chazan, Member ofthe Knesset
In addition,the High Commissionermet with representatives of civil society (acadeinics
and humanrights defenders), Membersof the Knesset and other Israeli officials, includingthe
StateProsecutor.
Meeting with Israeli andArab NGOs in Jerusalem(9November 2000)
Btselem Israeli Information Centre forHumanRights inthe Occupied Territories
HaMoKedCentre for the Defence ofthe Individual
Public Committee against Torturein Israel
Defencefor Children International (Israel Section)
Ittijah Union ofArab Community Based Association
Physicians for Human Rights
Association forCivil Rights in Israel(ACRI)
Rabbis forHuman Rights
Adalah Legal Centre for Arab Minority Rightsin Israel
Mossawa Centre
Ms. Tamar Pelleg, humanrights lawyer
Visit to the "Yad Vashem" Martyr's andHeroes' Memorialof the Holocaust ANNEX 10
Commission on Human Rights, Question of the Violation of
Human Rights in theOccupied Arab Territories,including
Palestine, Report ofthe human rights inquiry commission
established pursuant to Commission resolution S-511of 19 October
2000, ElCN.41200121, 1March 2001 UNITED
NATIONS
Economicand Social Distr.
Council GENERAL
ElCN.412001121
16March 2001
Original: ENGLISH
COMMISSION ONHUMAN RIGHTS
Fifty-seventhsession
Item 8of the provisionalagenda
QUESTION OFTHE VIOLATION OF HUMANRIGHTS IN THE OCCUPIED
ARAB TERRITORIES, INCLUDINGPALESTINE
Report of theman rights inquiry commissionestablished pursuant
to Commission resolutionS-519oOctober 2000
GE.O1-11872(E) CONTENTS
1. INTRODUCTION .............................................. 1-9 3
II. METHODOLOGY .............................. ...... ..... .. ..10 - 15 5
III. CLARIFYING THECONTEXT: ILLUSIONAND
REALITY ..........................................................16.
3....... 6
IV. THE LEGAL STATUSOF THE CONFLICT ......................35.-43 11
v. EXCESSIVE USE OF FORCE .........................................52 14
VI. EXTRAJUDICIALEXECUTIONSIPOLITICAL
ASSASSINATIONS ...................................................- 64....... 17
VII. SETTLEMENTS .......................................................-....
20
VIII. DEPRIVATION OF THE ENJOYMENTOF ECONOMIC
AND SOCIALRIGHTS: EFFECTOF CLOSURES,
CURFEWS, RESTRICTIONSON MOVEMENTAND
DESTRUCTION OF PROPERTY ...................................9 - 95 22
IX. PALESTINIAN REFUGEESAND THESECOND
INTIFADA ...........................................................6....03.. 27
CONCLUSIONS AND RECOMMENDATIONS .................104 - 134 29
Annexes
1. Extract from Commissionresolution S-511 .........................................5.......
II." Programme of the visit ofthe Human RightsInquiry Commission
to the occupied Palestinian territories and Israel ...................................36......
III. Population map of the West Bank and theGaza Strip ......................... 44
* Reproduced in English only. 1. INTRODUCTION
1. On 19October 2000, the Commission onHumanRights adopted resolution S-511
establishinga commissionof inquiryto investigate violationsof human rights and humanitarian
law inthe occupiedPalestinian territoriesafter 28 September2000 and to provide the
Commissionon Human Rights with its conclusionsand recommendations (see annex 1).
In pursuance of this resolution, ahumanrights inquirycommission was established on
2 January2001, comprisingProfessorJohn Dugard, (SouthAfrica), Dr. Kama1Hossain
(Bangladesh)and ProfessorRichard Falk (United Statesof America). Initially
Professor Dugard andDr. Hossain acted as Co-Chairpersons but, during the course of the visit to
the occupiedPalestinian territories(OPT), Professor Dugardwas appointed as Chairman.
2. The Human Rights Inquiry Commission("the Commission") held its first meetingin
Geneva from 14to16January 2001 to discuss its mandate,methodology and programme
of action. Itthen visited the occupied Palestinian territories(OPT) and Israel from 10
to 18February2001. The full programmeofthe Commission appearsin annex II.
3. On theevening of its arriva1in Gazaon 10February 2001, the Commissionmet with the
PalestinianAuthority President,Yasser Arafat, who gavethe Commissionan account of the
situation from the perspectiveof the Palestinian Authority.From the programme contained in
annex II, it will beseen that, while in Gaza,the Commission held meetings anddiscussions with
membersof the Palestinian Authority, non-governmental(NGOs),the Palestinian Red Crescent,
the InternationalCommitteeof the Red Cross (ICRC), internationalagencies (notablythe Office
of the UnitedNations High Commissionerfor Human Rights(OHCHR),the United Nations
Special Coordinatorin the OccupiedTerritories (UNSCO)and the United Nations Reliefand
Works Agencyfor Palestine Refugeesin the Near East (UNRWA)),joumalists, lawyers and
membersof the Palestinian Legislative Council. It also interviewed several young menwho had
been seriously woundedduring demonstrationsby gunfirefrom the Israeli Defence Force (IDF)
and visiteda hospital inKhan Yuniswhere it sawpersonshospitalized as a result of gas
inhalation. En route to Khan Yunis, the Commission visitedthe Qarara area, near the Kusufim
road leading tosettlements, where it sawagriculturallandthat had beenbulldozed andhouses
that had been demolished by the IDFand it spoke with the occupants of these houses, who are
now living in tents. AtKhan Yunis the Commission visitedthe Tufar checkpoint adjacent tothe
Neve DekalimJewish settlement. Whilethe Commissionmembers were speakingtojournalists
at this point,two shots were fired froma nearby buildingat the settlement. This evoked a heavy
response from the IDF baseattachedto the settlement,resulting in three casualties,two of which
were serious. Thereafter, the Commission interviewed personswho had sufferedas a result of
gunfire orthe destructionof property.
4. The Commission spentWednesday, 14February interviewingIsraeli NGOs andIsraeli
interlocutors who providedthe Commission witha broader understanding of the context ofthe
conflict andthe legal positionadopted by the Governmentof Israel. On 15 and16February the
Commission visited Ramallah, where it mew t ith members ofthe Palestinian Authority,the
Palestinian LegislativeCouncil, the Palestinian Peace Negotiation AffairsDepartment, and
Palestinian NGOs,lawyers and academicians. Onthe morning of 16February, before leaving
for Ramallah,the Commissionmet withthe representativesof member Statesof theEuropeanUnion, whose views confirmedmany of the opinions expressed by other interlocutors
interviewedby the Commission. Later in the morning of 16February the Commissionspoke
with Christianand Muslim leaders (includingthose responsible forthe management of the
Al Aqsa mosque) and met with Mr. FaisalEl-Husseini at Orient House. On Saturday,
17Februarythe Commission travelled toHebron, where it met with the Temporary International
Presence inHebron (TIPH) and the Mayor of Hebron. Owing to the tense securitysituation
arisingfromthe funeral of a person killed by IDF gunfire on the previous night, it wasunable to
visit"H2", the area of Hebron under Israelimilitary control. After leaving Hebron,it visited the
Aida RefugeeCamp near Bethlehemand inspected anUNRWA school and houses which had
been heavilydamaged by IDF shelling. Thereafter,it met with a wide range of interlocutors and
joumalists in Jerusalem.
5. While in Jerusalem, the Commissionheld evening meetings with widelyrespected Israeli
academicand intellectual figures,who wereable to inform the Commission aboutthe legal
context ofthe conflict and the Jewish settlements inthe West Bank and Gaza andprovide Israeli
perspectivesof the intifada. Onthe afternoon of 16February,the Commission visited the
EastJerusalem neighbourhood of Gilo,which hadcomeunder gunfire from the Palestinian town
of Beit Jala. On the last day of its visit,the Commissionmet with an Israeli political scientist
and a formerIsraeli IDF General.
6. At the request of the Commission,the staff of the United Nations Secretariat
accompanyingthe Commission conducteda number of confidential interviewswith victims in
Gaza, Ramallah,Hebron and Jerusalem. The texts of these interviews were shared with
members ofthe Commission.
7. The Government of Israel made it clear fromthe outset that it would not cooperate with
the Commission. Two letters were addressedto the Governmentof Israel before the departure of
the Commission for Israelrequestingmeetings withthe Government; a finalletter containinga
similar requestwas sent while the Commissionwasvisiting the area. Despite these efforts, the
Governmentof Israel consistentlymaintained its policy ofnon-cooperation with the
Commission. The Commission is, however, pleased toreport that the Government didnot in any
way obstructthe work of the Commissionand indeedfacilitated its visit to Israel andthe
occupiedterritories by granting Dr. Hossainan entryvisa. (Theother two Commissionersdid
not requirevisas for their visit.)
8. Jewish settlements in theWest Bankand Gazafeature prominently in this report. For
this reason,the Commission approached theCouncilof Jewish Settlementsof Judea, Samaria
and Gaza(Yesha) in order to obtaintheir viewsat firsthand. After considerationand
consultationwith the Governmentof Israel, the Councildecided not to cooperate with the
Commission.
9. The Commission made aconcertedeffort to obtain information and opinionsabout
humanrights violations and violations of internationalhumanitarian law from both the
Palestinian andthe Israeli perspectives. The Commission regretsthe refusa1of the Government
of Israel to cooperate with it. This meant that it could notobtain specific responses to allegations
of humanrights violations and violations of internationalhumanitarian law or benefit frominteraction onthe concerns of the Commission. The Commission believes,however, thatit was
adequatelyinformed asto the officia1Israeli position throughits study of the Israeli submissions
to the MitchellCommission and theGovernment'sresponseto the report of the High
Commissionerfor Human Rights and by speakingto informed Israeli interlocutors. It also had
the benefit ofa discussion with former GeneralShlomoGazit, the Chief Military Coordinator of
West Bankand Gaza Policyin the period 1967-1974and a keen student of military affairs and
security doctrine.
II. METHODOLOGY
10. The Commissionhas studied numerous reportson matters affecting human rights and
humanitarian law inthe occupiedPalestinian territoriessincethe start of the second intifadaon
28 September 2000. During its visit to Israel and the occupiedterritories, it heard a considerable
amountof evidenceon such matters. In addition, itexperienced violence atfirst hand, spoke to
victims and inspecteddestroyedproperties and thesites of some of the worst confrontations
betweendemonstrators andthe IDF. The impressionsand interpolations of the Commission and
the testimonyreceived by the Commissionconfirmthe views expressed by the mostrespected
and reliableNGOs inthe region. The Commissionhas, therefore, relied to varying degreeson
the findings ofrespected NGOs where theywere supportedby reliable eyewitnessaccounts and
wherethey coincidewith other evidencereceivedby the Commission. In other words,the
Commissionis guided in its report by the best available evidence. Most of this evidenceis not
disputedby either the PalestinianAuthority (PA) orthe Governmentof Israel, althoughthey tend
to place aninterpretationdifferent fromthat of the Commissionupon it.
11. In itsreport the Commissionrefersto facts and figuresthat showthe magnitude of the
violations ofhuman rights and international humanitarianlaw inthe OPT. These facts and
figureshave been taken from a wide variety of sources. Every attempthas been made to confirm
their accuracyby reference to reports on the same incidents from other sources. Wherethere is
any doubtabout the accuracy of a particular factualsituation,no statistics are given about it.
The present report will showthat the IDF, assistedby settlerson occasion, has been
12.
responsiblefor most of the human rights violations and violationsof internationalhumanitarian
law inthe OPT. This is not to overlookthe fact that human rights violations have been
committedby Palestinians, either under the authority ofthe PA orby individual Palestinians
actingseemingly withoutauthority. Where necessary,the present report draws attentionto these
violations.
13. The mandate of the Commission isto reporton violations of human rights and
internationalhumanitarian law in the OPT. Boththe Governmentof Israel and the PA allege that
the otherparty has violated the OsloAccords in fundamentalrespects during the present intifada.
The Commissionmakes no attemptto pronounce on these allegations, except where they
impingeupon matters fallingwithin its mandate.
14. In the course of its investigation,the Commission met leadersof civil society in both
Israel andthe OPT. We were impressed with theirunderstanding and vision. Leadersof this
kind offerthe best prospect for the future of Palestineand the normalization of relations between
Jews andArabs.15. The Commission hopes that its report willserve to advance the peace process. The
attitudeof the Commission is that, while there can be no human rights without peace, a durable
peace is not likely to be attained if it is not foundedon respect for human rights and the rule of
law.
III. CLARIFYING THE CONTEXT: ILLUSION AND REALITY
16. It was evident in al1phases of our inquiryinto the patterns of violations of human rights
and internationalhumanitarian law duringthe secondintifada that an appreciation of the
behaviour ofthe parties involved dependedon having an understanding of the surrounding
context. Eachside has feltjustified in takingthe action that has accompanied recentmoves,
althougheach side gives its own self-serving interpretationof its legal, moral and political
character. It is important to comprehendthese differences in the process of seekingan objective
assessment ofthe various allegations of violativeconduct. It isjust as important to avoid
equatingadversarypositions as equallypersuasive. In the setting of the Israeli-Palestinian
relationshipit is ofpervasive significancethat the Palestinianpeople are strugglingto realize
their right ofself-determination, which by virtue of internationallaw and moralityprovides the
foundation forthe exercise of other rights. Ofcomparable significance is the appreciationof the
extentto which Israel's continuedoccupationof Palestinian territories has remainedthe most
formidableobstacle to Palestinian self-determination.
17. The Commission came away fromthis inquirywith two overriding assessmentsthat are
at oncediscouragingand illuminating.
18. The firstinvolves perceptions, and focuseson the extent to which the two sidesperceive
the centralreality of their respectivepositionsfrom diametricallyopposed constructions of the
meaningof recent events. In essence, the Governmentof Israel and most Israelis conceiveof the
breakdownof the Oslo process as creatingforthem a severe and novel securitycrisis. Most
Israelis viewthe second intifada as an indication thatPalestinians are unwilling to resolve their
conflictbypeaceful means, havingrejected whatis regarded as a generous offer by the
Government ofIsrael at the CampDavid II andTaba stagesofthe Final Statusnegotiations. The
nature of thiscrisis is such that, accordingto this dominant Israeli perspective, the encounter
withthe Palestinianshas moved from arelationshipbetween an occupying Power and an
occupied peopleto one between conflicting parties ina state of belligerency or war, implyinga
virtual absence of legaland moral constraints,at least on the Israeli side, provided only thata
self-servingargument of military necessityis set forth.
19. In the starkest possible contrast,the PalestinianAuthority and most Palestiniansperceive
the currentphase of their relationshipwith Israelasbrought aboutby a combinationof the
distortions associatedwith the implementation of theOslo principles, the failureto implement
a seriesof authoritative United Nationsresolutions,most particularly SecurityCouncil
resolutions242 (1968) and 338 (1973), and gravebreachesby Israel of the Fourth Geneva
Convention. These aspects of the situation are furtherseen as responsible for the full harshness
of Israeli occupationas it affects adverselythe daily livesofthe Palestinians. Such
circumstancesare regarded as profoundlyaggravatedby the continued expansionof Israeli
settlementsthroughoutthe period ofthe Oslo process andby the IDF role in their protection.The combination of these elements is regarded by most Palestinians as the proximate cause of
the escalating spiralof violence set off by the provocative events at Harem al-Sharifl
Temple Mounton 28 September 2000. In this regard,the second intifada is viewed asa
spontaneousseries of moderate and proportional responses toan occupation that has been
maintained andperpetuated in defiance of the authority of the United Nations since it was
established in 1967. From this perspective, the Palestinianscontend that they continue to seeka
negotiated end tothe conflict to attain a peaceful settlement that isfair to both sides and upholds
the security of both peoples on the basis of mutuality.
20. Our second closely related conclusion is associatedwith the somewhat disguised link
betweenthe modality of Israeli occupation as a result ofchanges brought about by the Oslo
process and the subsequent intifada, with its escalatingspiral of violence. It is of critical
importance toappreciate the interaction betweenthe redeployment of the IDF since 1994andthe
implementation ofthe Oslo Accords. In effect, theIDF withdrew by stages from most of the
areas on the West Bank and Gaza inhabitedby the bulk ofthe Palestinian population, and yet
sustained, and evenintensified, its control overthe borders between the Palestinian territories
and Israeland among the various districts intemal to the OPT. Even more significantly, owing
to the retention ofthe settlements situated throughoutthe Palestinian territories, as the
accompanyingmap makes clear (annex IV),the West Bank and Gaza were divided into "A",
"B", and "C" areas, with the Palestinian Authority exercising fulladministrative control over A,
while Israel exercises security control over B and retains exclusive control over C. In effect, a
seriesof intemal boundaries were establishedby agreementsimplementing the Oslo Accords, so
as to enable Israel to provide protection to the settlementswhile withdrawing from areas densely
populatedby Palestinians. The effect of such a redistricting ofthe Palestinian territories was to
produce a situation of extreme fragmentation,makingtravel very burdensome for Palestinians
who went, for work or otherwise, from one part of the territories to another: checkpoints were
maintainedwhere detailed searches were carriedout that resulted in long waits and frequent
humiliation,greatly burdening Palestinian rights of movement even under normal circumstances.
In the course ofthe second intifada, this already difficult situationhasbeen severely aggravated
by frequent closures and blockades that have prevented themovement of goods and persons
across both intemal and extemal borders. Most Palestiniansdescribed the situation of recent
months as livingunder "a state of siege".
21. Such a pattern of control and security can only be understood in relation to the
settlements andtheir need for safe access to and from Israel. The main IDF function in the
occupied Palestinianterritories is to guardthe settlements andthe access and bypass roads. The
relationship issuch that the settlers are given unconditionalpriority whenever their presence
impinges uponthat of the Palestinian indigenous population. For instance, al1Palestinian traffic
is stopped whilea single settler vehicle passes on an access road, causing long delays and much
resentment. While travelling, particularly in Gaza, theCommissionhad its own direct
experience ofthis situation. Whena violent incident occurs, Israeliclosures further inhibit
travel, oftenpreventing or greatly detaining even emergencytraffic, such as ambulances. The
Commissionverified several accounts of deathsdue to an inability ofPalestinians to receive
timelymedical attention. Israel has invested heavilyin an elaborate system of bypass roads in
the West Bankdesigned to provide most settlements andthe IDF with the means to travel to and
from Israel,and between settlements, without passing through Palestinian-controlledareas.
Palestinians viewthese roads with alarm, both because of their substantial and symbolicencroachmentupon the heart of a future PalestinianState and, more so, because the magnitude of
the investmentand effort involved in sucha development seemsto impart an Israeli view that
most of the settlements on the West Bank willnever be removed. This situation contrastswith
Gaza, whereaccess roads cut through Palestinianterritory and have not been specially
constructed. Inthis regard, the settlement structure in Gaza seems removable bynegotiationson
final statusin a manner that at present doesnot appear likely in relation to the West Bank.
22. Part ofthe perceptual gap is associatedwith the effects and nature of the violence.
Israelisappearto connect most of their casualtieswith the stone-throwing demonstrations,
interspersedat times with Palestinian gunfire. The Palestinians associate casualtieson their side
mainly withwhat they view as IsraeliIIDFoverreactionto these demonstrations. It was the clear
judgement ofthe Commission that Palestinian casualtieswere indeed mainly associated with
these direct encounters, but that, to the best of Ourknowledge,the IDF, operatingbehind
fortificationswith superior weaponry, endured nota single serious casualty as a result of
Palestiniandemonstrations and,further, theirsoldiersseemedto be in no life-threatening danger
duringthe course of these events. Itwas the definiteview of the Commission that the majority
of Israeli casualtiesresulted from incidents on settlementroadsand at relatively isolated
checkpointsat the interface between A, B, and C areas,that is, as a consequence of the
settlements,and irritations resultingindirectly therefrom. Inthis regard, account must betaken
of settlerviolence against Palestiniancivilians inareas adjoining settlements, andof IDF
complicity insuch violence. A pervasive featureof the tensions associated with the second
intifada isthe clear affinity between the IDFand Jewish settlement communities,and the equally
evident hostilitybetween these communitiesand the surrounding Palestinian population.
23. The language associated with thesecond intifadais also relevant to an assessmentof
humanrights violations and violations of intemationalhumanitarian law. Both sidestend to
view the violenceof the other side as comprising"terrorism". The Israelis view attacksby
Palestinians,especially beyond "the GreenLine" (pre-1967Israel), as terrorism evenif directed
againstofficialtargets such as IDF soldiersor govemmentofficials. Palestinians regardthe
IDFtacticsinvolving shooting unarmedciviliandemonstrators (especially children)or relyingon
tanks andhelicopters against demonstrators, in retaliationfor shots fired from refugee camps,
and assassinationsof targeted individualsas Stateterrorism. The legal status of these patternsof
violence isdifficult to establish authoritatively. Part ofthe current complexityrelates to the
Israeli contentionthat a condition of armed conflicthas replaced that of belligerent occupancyas
a result ofIDF withdrawals fromA zones, and the transferof goveming authorityin those areas
to the PA. Another part of the complexityarises fromthe Palestinians' contentionthat they
enjoy a right of resistance to an illegal occupation.
24. There is another fundamentaldiscrepancyof perception. Israel believes that its security
measures,including border and road closures, representreasonable, even restrained,measuresof
responseto Palestinian unrest and opposition. To theextent that Israel relies onthe superiority
of its weaponryor inflicts most of the casualties,suchbehaviour is rationalized as necessaryto
demoralizea numerically superior enemy,nipping itsresistance in the bud. Suchlines of
explanationwere set forth by Israeli witnesses toexplainandjustify even the use of live
ammunitionby the IDF againstunarmed Palestiniandemonstrators during the openingdays of
the second intifada. During these crucial days there wasno evidence of Palestinian gunfire.25. The Palestiniansview this link between Palestinianacts of resistance and Israeli
responses from anentirely different angleof interpretation. To Palestinians, the Israeli use of
force from day oneof the second intifada, and indeed beforeAriel Sharon's visit on
28 Septemberto the Al Aqsa mosque,was intended to crushany Palestinian impulseto oppose
openly the continued Israelidomination and occupation ofthe West Bank and Gaza. Formost
Palestinians, theclosures of roads and borders, destruction ofhomes and property, and
accompanyingmeasures of curfews and restrictions are regardedas clear expressionsof an
Israeli policy ofinflicting collectivepunishmentupon al1Palestinian inhabitants. Palestinians
also rejectedthe view that the Palestinian Authority, and itspolice, had the capacityto prevent
hostile demonstrationsor to ensurethe absenceof violentincidents involving targetswithin
Israel. WhenIsrael responded to sucheventsby punishingthe territories as a whole it was
viewedby Palestiniansas vindictive,unjust and illegal because such a response lacked any
discernibleconnectionto either the perpetrator or to prospectsfor deterrence of futureviolence.
26. Closelyrelated to suchperceptions are differences ofviewpoint asto the nature of the
second intifada. Israelis tended to contrastthe first withsecond intifadas. The first intifada was
seenin retrospectby Israelis as havingbeen a largely spontaneous,bottom-up and non-violent
expression ofoppositionto Israeli occupation. It was, insuch circumstances,not reasonable to
holdthe Palestinianleadership responsiblefor the disorder. According to Israelis,the second
intifada was instigatedfrom above so as to mount a timely challengeto the Israeli leadershipat a
delicatemoment in the peace negotiations. It was a calculatedplan to improve upon an
exceedinglyweak Palestinian bargainingposition and it alsorepresented a serious failureby the
PalestinianAuthorityto carry out its obligationsunder the Interim Agreements flowingfrom
Oslo tomaintainsecurity for Israel in areas subject toits authority.
27. The Palestinians seethe second intifada from an entirelydifferent perspective, essentially
fromthe outlookof an occupiedpeople. They regardthe demonstrationsas spontaneous
eruptionsofpent-up hostile sentimentarisingfrom years offrustration, disappointmentand
humiliation. Palestiniansinterpretthe Israeli responsesas consistent with the basic structure of
the occupation oftheir territories, as one-sided,ackingin empathy forthe Palestinian civilian
population, anddesigned to punish and crush anysignsof resistance.
28. From this perspective,the Palestiniansseethe greaterreliance by Israel on heavy
weapons anddeadly fire in the second intifada,as comparedto the first,as seekingto discourage
Palestinians fromeither raising the level of their resistanceor resisting altogether. This reliance
onthe tacticsof war is alsoperceived asproviding Israel witha pretext for avoiding the
restraints associatedwith the exercise of police responsibilitiesor relating to the application of
standardsof human rights.
29. In additionto these basic structuralissues,it is of great importance to appreciate the
added vulnerability of Palestinianrefugeeswho comprise about50 per cent of the population in
the Palestinian territories andwhose number isincreasingat a rate of more than 3 per cent
per annum. While the Israelis tendto perceivePalestiniansresident in the territories as a single
reality, withoutaccording any specialattentionto the refugees,the Palestinians are farmore
consciousof the acute sufferingthat Israelisecuritymeasureshave brought to the refugee
communitiesduringthis secondintifada.E/CN.4/2001/121
page 10
30. These refugees have been particularlyvictimized duringthe second intifada, oftenbeing
trapped withintheir crowded confinesby closure andcurfew measures, which has made it
impossible formany refugees to keep their jobs. Unemploymentis high, savingsalmost
non-existent,with great suffering resulting. Also, forhistorical reasons, the Palestinian refugees,
alone among refugee communities in theworld, fa11outside the protective regime of the Office
of the UnitedNations High Commissioner forRefugees(UNHCR). UNRWA provides relief
and humanitarianaid, but is not constitutionallyor politically empowered to provide needed
protection,a conclusion supported forus by discussionswith leading United Nations officials
and NGOexperts.
31. A further fundamental questionof humanrightsrelates to the extreme differences
bètweenthe parties on matters pertainingto the core dispute, the wider refugee issue and its
relationship toa successful peace process. The Israeli consensus regards the assertion ofany
seriousdemand toimplement aPalestinian right of returnin relation to Palestinians expelled
from 530 villages in 1948as a decisivecomplication in the search for "peace". The Palestinian
approach ismore varied and tentative. SomePalestinians do insist thatthe right of return be
fully implemented inaccordance with international law,which accords priorityto repatriationto
the extentdesired. More frequently, Palestiniansseem more flexible onthis matter, seeking
mainly a symbolic acknowledgementby Israel of the hardships associated withthe expulsions,
someprovision for compensation andsome possibilitiesfor Palestinian family unification. This
Palestinianview suggests that ifthere is Israeli good willon other outstanding issues, suchas
Jerusalem andthe settlements, then controversy overthe right of return can be addressed ina
mannerthat takes account of practical realities thathave developed inthe course of the more
than 50 yearssince the critical events.
32. Overall,the Government of Israel and Israelipublic opinion tend to regard al1Israeli uses
of force as reasonable measures of security, given thealtered connection between the two
societiesas a result of the IDF redeployrnent associatedwith the Oslo process. Suchsecurity
measures need tobe stringent and intrusiveso as to affordprotection to the Settlements,andto
settlermovement to and from Israel. Israeli securityis a catch-al1justification for al1policies
directedcoercively atthe people of Palestine. Sucha major premise enables the Israelioutlook
to view anyPalestinian recourseto force as tantamount to "terrorism". The perceptual gap is
greateston this issue of violence and its interpretation,as Palestinians view their acts of
oppositionas reasonable responsesto an illegal occupationof their homeland, treating their
violenceasproduced by consistent Israeli overreaction tonon-violent resistance. Additionally,
Palestiniansuniversally reject Israel'swider securityrationale andview restrictions on
movement, closures,property destruction,political assassinations, sniper shootingsandthe like
as punitive andvindictive practices inconsistent with theirfundamentalhuman rights, as well as
with the minimum restraints embodied ininternationalhumanitarian law.
33. There is one comprehensiveobservation bearingon the perception of United Nations
authorityby the two sides. Israelis tend to viewthe UnitedNations and most of the international
communityas completelyunsyrnpatheticto their questfor security, aswell as biased in favour of
Palestinianclaims and grievances. On their side,the Palestinians feel disillusioned about the
effectiveness of UnitedNations support and abandonedin their hour of need for elemental ElCN.41200111 21
page 11
protection. Palestiniansrefer to the myriad United Nationsresolutions supportingtheir cause,
but never implemented. Inthis sense,both sides are currentlysuspicious about therole of the
United Nations, itsoutlook, capacity andcommitment.
34. Three conclusions follow from thisconsiderationof Israeli-Palestinian perceptual gaps:
(a) The importanceof encouraging better contactbetween persons of good willon
both sidesso that communicationbetweenthe parties is more open and takes greateraccount of
the views of the otherside. This observationappliesparticularlytojournalists, currentlyby and
large confinedwithin their respective societies,whotendto provide readers with partisan
accounts ofthe interaction ofIsraelis and Palestinians thatare uncritical oftheir respective
officialpositions and to employ languagethat reinforces"enemy" stereotypes of "the other";
(b) The challengeto the organs of the United Nationsto rehabilitate their reputation
in relationtoboth Israel and the PalestinianAuthority, andthe two populations, by seekingto
achieve objectivityin apportioninglegal and political responsibility,in calling for certain
conduct inthe name of international law, and in fashioningproposals for peace and
reconciliation. As important,or more so, is the need to takestepsto ensure that United Nations
directives, whether in theform of resolutionsorothenvise, are implementedto the extent
possible, andthat non-complianceis addressedby follow-upaction;
(c) An appreciationthat a commitmentto objectivity does not imply aposture of
"neutrality" with respectto addressing the merits of controversiesconcerning alleged violations
of humanrights and international humanitarian law. Judgements can and must be made. It is
useful to recall inthis connectionthe statementof the IsraeliMinister for Foreign Affairs,
ShlomoBen-Ami,on 28 November 2000 in the course ofa Cabinet discussion, opposingthe
release of supposed Palestiniantransgressorsduringthe early stages of the second intifada:
"Accusationsmade by awell-established Societyabout howa people it is oppressing is breaking
the rulesto attain itsrights do not have much credence" (articleby Akiva Elder in Ha'aretz,
28 November 2000). Sucha perspective underliesthe entireundertaking of Ourreport. We have
attempted tothe extentpossible to reflect the facts and lawfairly and accurately inrelationto
both sides,but we have evaluated the relativeweight of facts and contending argumentsabout
their legal significance. This process alone enablesus to drawfirm conclusions about the
existenceof violations ofinternationallegal standards ofhumanrights and of international
humanitarian law.
IV. THELEGALSTATUSOF THECONFLICT
35. The legal status ofthe West Bank andGaza andthe legalregime governingrelations
between Israel and thepeople of Palestinehave beenin disputeever since Israel first occupied
the West Bank andGaza in 1967. As thesovereignty of Jordanover the West Bank was
questionableand Egypt never asserted sovereigntyover Gaza,the Government of Israeltook the
view that therewas no sovereign Powerat whose expenseit occupiedthese territories.
Consequently, although Israelis a party to theFourth GenevaConvention of 1949,it maintained
that it was not bound in law totreat the territories as occupiedterritories within the meaningofE/CN.4/2001/121
page 12
the FourthGeneva Convention. Despitethis, Israel agreedto apply certain of the humanitarian
provisionscontained inthe Fourth Geneva Convention tothe occupied territories on a de facto
basis.
36. The peace agreements betweenIsrael and the Palestinian Authority, hereafterreferred to
as the OsloAccords, have superimposedan additional levelof complexity on an alreadydisputed
legal situation. Itis now arguedby Israelthat, despitethe prohibitions containedin article47 of
the FourthGeneva Conventionon interferingwith the rights of protected persons in an occupied
territoryby agreementbetween the authorities of theoccupied territory and the occupying
Power,the Oslo Accords have substantiallyaltered thesituation. In particular, it is arguedby
Israel thatit can no longer be viewed as an occupyingPower in respect of the "A" areas,
accommodatingthe majority of the Palestinian population,because effective control inthese
areas has beenhanded over to the Palestinian Authority.
37. The status of the West Bank and Gaza raises serious questions, not only for the above
reasons, butalso because of the impact of humanrights and self-determination on the territory.
A prolonged occupation, lasting for morethan 30 years,was not envisaged bythe drafters of the
FourthGeneva Convention (see art. 6). Commentatorshave therefore suggestedthat inthe case
of the prolonged occupation, the occupying Poweris subjectto the restraints imposedby
internationalhuman rights law, as well as the rules of international humanitarian law. The right
to self-determination,which featuresprominently in bothcustomary internationallaw and
internationalhuman rights instruments,is of particularimportance in any assessmentof the
statusof the West Bankand Gaza. Theright ofthe Palestinianpeople to self-determinationhas
repeatedly beenrecognized by the General Assembly ofthe United Nations andthere can be
little doubtthat the ultimate goal of the Oslo peaceprocess is to establish an independent
Palestinian State. Indeedover 100Statesalreadyhave relations with the Palestinian entity, not
unlike relationswith an independent State, whilethe Palestinian Authority hasobserver status in
many internationalorganizations. ThePalestinian question is,therefore, seen by many as a
colonial issueand the recognition of Palestinian statehoodasthe last step in the decolonization
process initiatedby the General Assemblyin its resolution 1514(XV).
38. Uncertainty about the statusof Palestine in internationallaw has complicated theconflict
between Israeland the Palestinianpeople since29 September2000. The Governmentof Israel
arguesthat it can no longer be seen asan occupyingPower in respectof the A areas becauseit
has cededcontrol overthese territories to the PalestinianAuthority. Moreover,it argues that,
unlike the first intifada, in which the weaponsof the Palestinianuprising were mainly stones, the
weapons ofthe new intifada includeguns andheavier weaponry, with the resultthat there isnow
an armedconflict between Israeland the Palestinian people ledby the Palestinian Authority.
This argumentseekstojustify the use of force resorted toby the IDF in the present conflict. In
essence, Israelargues that it cannot be seen as an occupyingpolice power required to act in
accordancewith police law enforcementcodes, but that itis engaged in an armed conflictin
which it is entitled to use militarymeans, including the use oflethal weapons, to suppress
politicaldemonstrations,to kill Palestinian leaders andto destroy homes and propertyin the
interestof military necessity.
39. Clearly,there is no international armed conflict inthe region, as Palestine, despite
widespreadrecognition, still falls short of the acceptedcriteria of statehood. The questionthen E/CN.4/2001/121
page 13
arisesas to whether there is a non-intemational armed conflict, defined by the Appeals Chamber
of the InternationalCriminalTribunal for the Former Yugoslaviain the Tadic case, as
"protracted armedviolence between governmental authoritiesand organized armed groups".
The Israeliargumentthat the threshold for an armed conflicthas been met is.based on the fact
that therehave been some 3,000 incidentsallegedly involvingexchanges of gunfire andthat
Palestinian violenceis organizedand orchestratedby the Palestinian Authority. Acontrary view
advancedby the Palestinians is that thepresent intifadais to be categorized as an uprising of
large elementsof a civilian population against anoccupyingPower's unlawful abuses of its
controloverthat population and its environment;that the uprising has been instigated by loosely
organized elements ofthe population opposed to Israelioccupation of Palestine andthe failureof
the PalestinianAuthorityto improve the lot ofthe Palestinianpeople; and that there are no
properly organizedarmed groups, let alone armed groupscoordinated or organized by the
Palestinian Authority.
40. It is difficultfor the Commissionto make a finaljudgement onthis matter. However,it
inclines tothe view that sporadic demonstrations/confrontationsoften provoked by thekilling of
demonstrators andnot resulting in loss of life on the part of Israelisoldiers, undisciplined
lynchings (as inthe tragic killing of Israeli reservists on12October 2000 inRamallah), acts of
terrorism in Israelitself and the shootingof soldiersand settlers on roads leadingto settlements
by largely unorganizedgunmen cannotamountto protractedarmed violence on thepart of an
organized armed group. This assessrnentis confirmed bythe peace that prevails in those areas of
the West Bank andGaza visited bythe Commission. The Commission realizes thatthis
assessment, basedon a brief visit to theregion and the views of witnesses andNGOs generally
unsympathetic tothe IDF, may not be fully accurate. However,there is enough doubtin the
minds of themembers of the Commissionas to the prevailingsituationto place in question the
assessrnent of thesituationas an armed conflictby the IDFjustifying its resortto military rather
thanpolice measures.
41. In the opinion ofthe Commission, theconflict remains subjectto the mles of the
FourthGeneva Convention. It does not accept the Israeliargumentthat the Fourth Geneva
Convention is inapplicableby reason of the absenceof a residual sovereign Powerin the OPT.
This argument, premisedon a strained interpretationof article2 of the Convention, failsto take
account of the factthat the law of occupationis concernedwith the interests of the population of
an occupied territory ratherthan those of a displaced sovereign. The argument that Israel is no
longer anoccupying Power because it lacks effective controlover A areas of the OPT carries
more weight,but is likewiseuntenable. The test for the application ofthe legal regime of
occupationis not whetherthe occupying Powerfailsto exercise effective control overthe
territory,but whether it hasthe abilityto exercisesuchpower, a principle affirmed by the
United StatesMilitary Tribunal at Nümberg in Inre List and others (TheHostages Case)
in 1948. The OsloAccords leave Israel with the ultimate legalcontrolover the OPT and the fact
that for political reasonsit has chosennot to exercise this control, when itundoubtedly hasthe
military capacity todo so, cannot relieve Israel ofits responsibilities asan occupying Power.
42. While an occupying Poweror party to a conflictmay be given a margin of interpretation
in its assessment ofthe nature of the conflict, it cannotbe allowedunilaterally to categorize a
situation insuch a way that the restraints of international humanitarianlaw and human rights law
are abandoned. For thisreason, the Commission suggeststhat the High ContractingParties toElCN.412001/121
page 14
the Geneva Convention shouldseriouslyaddressthe nature of the conflict and Israel's
obligations asa party to the Fourth Geneva Convention. The Commission ismindfùlof the
Israeli objection tothe "politicization" ofthe GenevaConventions,but it sees no alternative to
the exercise ofthe supervisory powersof the High Contracting Partiesunder article 1of the
Fourth Geneva Convention. Israel'sobjectionthat article 1does not oblige aHigh Contracting
Partyto "ensure" respect for the Conventionon the part of other Statesparties runs counterto the
views ofthe ICRC andto the general obligation onthe part of Statesto ensure respect for
humanitarianlaw.
43. Even if the conflict is categorizedas an armedconflict, entitlingthe IDF to greater
latitude inthe exercise of its powers, the IDF is certainlynot freed from al1restraintsunder
internationalhumanitarian law and human rights law. Itis still obliged to observetheprinciple
of distinctionrequiring that civilians maynot bemadethe object of attack, "unless and forsuch
time as they take a direct part inhostilities" (a principlereaffirmed in article 51(3)of Additional
ProtocolI to the Geneva Conventions). Stonethrowingby youths at heavily protected military
postshardly seemsto involve participation in hostilities. Moreover, there is considerable
evidence ofindiscriminate firing at civilians in theproximity of demonstrations and elsewhere.
In addition,the IDF is subject to the principle of proportionalitywhich requires that injuryto
non-combatantsor damage to civilian objectsmay notbe disproportionateto the military
advantagesderived from an operation. The use of lethalweapons against demonstratorsandthe
widespreaddestruction of homes andpropertyalong settlement roads cannot,in the opinion of
the Commission,be seen as proportionate inthe circumstances. Human rights noms also
providea yardstick for measuring conductin the OPT, as there is general agreementthat such
noms are tobe applied inthe case of prolonged occupation. The 1979Code of Conduct forLaw
EnforcementOfficials and the 1990Basic Principleson the Use of Force and Firearmsby Law
EnforcementOfficials reflect the human rights noms applicable in the case of law enforcement
and crowdcontrol. It is against this background thatallegationsof human rights violations and
violationsof international humanitarianlaw willbe considered in the following section.
V. EXCESSIVE USE OF FORCE
44. Casualtieshave been high inthe present intifada. According to conservativeestimates,as
at 21February 2001,3 1 1 Palestinians(civilians andsecurity forces) have been killed by Israeli
securityforces and civilians in the OPT;47 Israelis(civilians and security forces)have been
killed by Palestiniancivilians and securityforces;11,575Palestinians and466 Israelishave
been injured; 84 Palestinian childrenunder the age of 17years have been killed and
some 5,000 injured;1Israeli childhas been killed and15injured; 271Palestinian civilians
and40 members of the security forceshave been killed;while 27 Israeli civilians
and 20 membersof the security forceshavebeen killed.
45. Most of the Palestinian deaths and injurieshave been caused by live ammunition
(deaths: 93 per cent; injuries: 20per cent), rubber-coated bullets(deaths: 1per cent; injuries:
37per cent), and tear gas (deaths: 1per cent; injuries: 32 per cent). Most of these deaths and
injuries haveoccurred in confrontationsldernonstrationsheld on the perimeters of A areas, roads
to settlementsorjunctions on theroadto settlements. There is no evidence that members of the
IDFresponsible forsuch killings orthe inflictionof such injurieswere killed or seriously
injured. On the contrary, the evidence suggests thatmembers of the IDF, behind concreteE/CN.4/2001/121
page 16
children. In thisrespect, Palestinian parents are no different from Israeliparents. It is likely that
the PalestinianAuthority could have done more to restrain children from participation in
stone-throwingdemonstrations. The evidencesuggeststhat, on occasion, the Palestinian police
made attemptsto prevent demonstrations,but these attemptswere often unsuccessful. This can
be ascribed tothe incompetence of the Palestinian police,the fact that the Palestinian police were
themselvestargetedby stone-throwerswhen they attemptedto curtail demonstrations,and an
understandableidentification of the Palestinian policewith the goals and spirit of the
demonstrators. History is replete with instances of casesin which young people, promptedby
idealism,despair,humiliation andthe desire for excitement,have participated in demonstrations
that haveconfrontedan oppressive regime. In recenttimes children have behaved ina similar
way in NorthernIreland, SouthAfrica, Indonesia andelsewhere. The insistence ofthe IDFthat
the Palestiniandemonstrators, humiliatedby years ofmilitary occupation which has become part
of their cultureand upbringing, havebeen organized andorchestrated by the Palestinian
Authority eithershows an ignoranceof historyor cynicaldisregard forthe ovenvhelmingweight
of the evidence.
49. The excessive use of force on the partof the IDF and the failure to complywith
internationalhumanitarian lawis further demonstratedby the failure of the IDFto respect the
vehiclesof the Red Crescent and other medical vehicles. Statistics show that vehicles of the
Red Crescenthave been attacked on 101 occasions. The IDF has also prevented ambulances and
privatevehicles from travelling to hospitals. In this respect, it should be stressedthat the
Palestinianshave likewise shown a lackof respect for medical vehicles and there have
been 57 incidentsin which Palestinianshave attackedpersonnel and vehicles of the
Magen David Adom.
50. In thepresent intifada,the IDF apparently ongrounds of military necessity, has destroyed
homes and laidto waste a significant amountof agriculturalland, especially in Gaza, whichis
already landstarved. Statistics show that94 homes havebeen demolished and 7,024dunumsof
agricultural landbulldozed in Gaza. Damageto privatehouses is put at US$ 9.5 million and
damageto agricultural land at about US$27 million. Most of this action has occurredon roads
leading to Settlements,ostensibly in theinterestof theprotection of settlement vehicles. The
Commission inspectedsome of the devastation causedby the IDF along settlementroads. On
the Kusufim road,in the Qarara district,it inspectedland that had been bulldozedfor a distance
of some 700metres fromthe road. Houses situated onthis land had been destroyed andfamilies
compelledto livein tents. Waterwells in the vicinityhad alsobeen completely destroyed. The
Commission found it difficult to believe thatsuch destruction,generally carried out in the middle
of the night andwithout advance warning, wasjustifiedon grounds of military necessity. Tothe
Commission itseemed that such destruction of propertyhad been carried out in an intimidatory
manner unrelatedto security, disrespectful of civilianwell-being and going well beyondthe
needs ofmilitary necessity. The evidencesuggeststhat destruction of property anddemolition of
houseshave beenreplicated elsewherein the West Bank andGaza. Palestinians,like other
people, are deeply attached to their homes and agriculturalland. The demolition of homes and
the destruction ofolive and citms trees, nurturedby farmers over many years, has caused untold
humansufferingto persons unconnected withthepresent violence. Even if a low-intensity
armed conflictexists in the West Bank and Gaza,it seems evidentto us that suchmeasures are
disproportionate, inthe sensethat the damageto civilianproperty outweighs military gain. E/CN.4/20011121
page 17
Here it should be stressed that theourth Geneva Conventionprohibits the destruction ofprivate
propertyby the occupying Power"except where such destructionis rendered absolutely
necessaryby military operations" (art.53).
5 1. The Commission concludesthat the IDFhas engaged in the excessive use of force at the
expenseof life and property in Palestine. At the same time the Commissionwishes to expressits
horror at the lynchingsof Israelimilitary reservists in Ramallah on 12October 2000,the killing
of Israelis at a bus stop in Tel Aviv by aPalestinianbus driveron 14 February 2001 and similar
incidents that havedone much to inflame Israelipublic opinion againstthe Palestinian uprising.
52. There is no evidence that the IDFhas taken serious stepsto investigate the killing or
wounding of Palestinians,except in a handfulof cases,even where the circumstancesstrongly
suggestthat soldiershad behaved in an undisciplinedor illegal manner. The excusethat no
investigationsare required on accountof the characterizationof the conflict as armed conflict is
not convincingand shows a disregard for the provision of the Fourth Geneva Convention which
requiresthe occupying Powerto prosecutethose guiltyof committinggrave breaches and other
infractions of theConvention(art. 146). Equally unconvincingare the reasons givenby the
PalestinianAuthority for its failureto investigate and prosecutethe killings of Israelis,
particularlythose responsible forthe Ramallah lynchings.
VI. EXTRAJUDICIAL EXECUTIONSIPOLITICALASSASSINATIONS
53. Extrajudicialexecutionsor targeted political assassinationscarried outby the IDFhave
resultedin only a small numberof deaths and cannot compare in magnitudewith the more
widespreadsufferingcausedto the Palestinian population. The Commissionhas, however,
decided topay specialattentionto these killings,becausethey have been officially
acknowledged, promoted and condoned.
54. Israel has long been accusedof being responsible forthe assassinationof targeted
Palestinian individuals, but itis only duringthe secondintifadathat such a practice has been
officiallyacknowledgedand defended at the highest levels ofthe Government of Israel. In early
January 2001, the IsraeliDeputy Ministerof Defence,Ephraim Sneh,justified the policy in the
following language: "1can tell you unequivocallywhat the policy is. If anyone has cornrnitted
or is planning tocarry out terrorist attacks, hehas to be h... It is effective, precise andjust."
At a meeting of the Foreign Affairs andDefence Cornmittee,Prime Minister Ehud Barak putthe
claimmore broadly: "If people are shootingatus and killingus, Ouronly choice is to strike
back. A country under terrorist threat must fightback." And more directly, while visitinga
militarycommandon the West Bank, Mr. Barak was quotedas saying, "TheIDF is free to take
action againstthose who seek toharm us".
55. There is furtherofficia1confirmationof the Israeli claim ofright with respect to
extrajudicial killings. Whenthe IDF West Bankmilitary commander,Brigadier-General
BeniGantz,was asked whether Israelwas pursuing a "liquidation" policy with respect to the
Palestinians,he responded as follows: "You saidliquidation, notme. We will initiate action as
necessary. We will not stopsuch action aslong as there is a threat." Israel's Chiefof Staff,
ShaulMofaz, invokedthe legal opinion issued bythe MilitaryAdvocate-General,
Menachem Finkelstein,that it was permissible in exceptional casesto kill Palestinian terrorists,E/CN.4/2001/121
page 18
expressedin the following guardedlanguage: "This is not routine, but an exceptional method
whose goalis to Savehuman lives in the absenceof any other alternative ... It is used against
people [whohave] definitely [been] identified ashaving worked, and are working, to commit
attacks against Israel." It should be noted that theMilitary Advocate-General uses more
circumscribedlanguage than do the political andmilitary leaders, but his guidelinesare
self-applied,depending upon the accuracy of Israeliintelligenceand upon good faithin limiting
suchtacticsto circumstances of an exceptionalcharacter.
56. One prominent instanceof a political assassination involved the snipershooting of
Dr. ThabatAhmad Thabat in Tulkarem,West Bank,ashe was driving his car from hishouse in
the morning of9 December 2000. Dr.Thabat, a dentist, 50 years of age, fatherof three, held
officia1positions inthe Palestinian Health Ministry andwas a lecturer on public healthat
Al Quds Open University. He was the Fatah secretaryin Tulkarem and was in regular contact
with IsraeliNGOs working in the area of health and human rights. Several Israeli witnesses
appearingbeforethe Commission expresseddismay aboutthe killing of Dr. Thabat,describing
him as their "friend" and "partner" inthe searchfor peace. Such expressions donot precludethe
possibilitythat Dr. Thabat mayhave had a double identity,but Israel has producedno evidence
of his complicityin violence against Israeli targets, beyondthe vague allegation of his
involvementin "terrorist activities". Press reports indicated that Israeli Special Forcesundertook
this actionagainst Dr. Thabat aspart of a military operationthat consisted of "cleansing"Fatah
securitycapacities in view of the demonstrationsinside the Palestinian temtories, and
specificallyat Tulkarem. Ms. SihamThabat,the widow of Dr. Thabat, submitted apetitionto
the SupremeCourt of Israel asking for an end to Israel's "cleansing policy", described as
imposing "capitalpunishment withouttrial". Thepetition was dismissed. As faras is known,the
prosecutionsubmitted no further evidencespecificallyimplicating Dr. Thabat.
57. While the Commissionwas present inthe Palestinian territories, anotherprominent
instance ofextrajudicial killing occurred. It involvedthe use of a Cobra helicopter gunship to
attack MassoudIyyad with three rockets on 14February2001 while he was drivinghis car in
Gazanear the Jabalya refugee camp. Mr. Iyyad wasa lieutenant colonel andhigh-ranking
member of Force17,an elite securityunit specificallyassignedthe task of protecting
YasserArafat. Israeli security forcesclaimed credit forthe assassination, contending that
Mr. Iyyadwas a leader of a Hezbollahce11in Gazathat was intending to transform the second
intifada intoa Lebanon-style war of attritionof the sort successfully waged byHezbollah in
the 1990s. Aside from the legalityof suchtactics, theallegations were never substantiated by
the release ofdocumentary or other evidence.
58. Such extrajudicial executionsduringthe secondintifada number at least 11,but the
figureis probably much higher. Palestinian andindependent sources put thefigureat
somewherebetween 25 and 35. On at least one occasion,the killing of Hussein Abayat
on 9 November 2000 by anti-tank missiles firedat his car from helicopters, two women
bystanderswere also killed and three otherPalestinianswere seriously injured.
59. In a disturbing escalationof language associatedwith such violence, a designated
spokesperson ofthe settler movement,YehoshuaMor-Yosef,has been quoted as saying"Arafat
is an enemy,he wasnever a partner. After seven yearsof war and him sendinghis own people
to kill, we need toassassinate him". (International HeraldTribune, 27 February 2001,p. 8). ElCN.41200111 21
page 19
60. There havebeen severalimportantpolitical condemnationsof extrajudicialkillings. The
Governmentof the United Stateshas expresseda critical attitudetowards extrajudicialkilling in
a detailedexpositionof the practicecontained in the "Occupied Territories" sectionof the
Country Reportson Human Rights Practices-2000issuedby the Department of State. Onbehalf
of the European Union,its Presidency issueda declarationon extrajudicial killings, calling them
"unacceptable andcontraryto the rule of law", and urging Israel"to cease this practice andthus
respect internationallaw". (Brussels, 13February2001,5928101(Presse 47)). This declaration
was formally submitted bythe Councilof the EuropeanUnion tothe Secretary-Generalof the
United Nationswith a requestthat it be circulatedas a documentof the GeneralAssembly.
61. It is the viewof the Commissionthat, whateverthe truth of various allegationsdirected
against specificindividuals,the practice of political assassinationis a fundamentalviolationof
internationalhuman rights standards,as well asa gravebreach of the Fourth Geneva
Convention. Severalhuman rights instruments, includingthe Universal Declarationof Human
Rightsand the InternationalCovenant on Civiland PoliticalRights, affirm the right to life and
specificallyprohibit executions of civilians without trialand a fairjudicial process.
62. Becausethe law of occupation also applies, provisions ofthis lex specialistake
precedence overhuman rights. (For clarificationof this conclusion, see the discussion onthe
legal statusof the conflict in sectionIV above.) Thus, whether a particular lossof life is to be
considered anarbitraryloss of life contraryto article6 of the International Covenant onCivil
and Political Rightscan only be decided byreference tothe law of occupation in theFourth
Geneva Convention. Article4 of the Fourth Geneva Conventiondefines persons protectedby
the Conventionas "those who, at a given momentand in any manner whatsoever,find
themselves, in caseof a conflictor occupation, inthe hands of a Party to the conflict or
Occupying Powerof which they are not nationals". The phrase "in the hands of' simplymeans
that the person is on territorythat isunder the control ofthe State inquestion and impliescontrol
that is more than mere physical control. Civilianslose the protectionunder the Fourth Geneva
Conventionwhen they become combatantsby taking a direct partin hostilities (art. 51(3) of
Additional Protocol1). Israel contendsthat the victims of targeted politicalassassinationswere
combatants. This is unconvincing fortwo related reasons: they were not participatingin the
hostilities atthe time theywere killed; andno evidencewas providedby Israel to back up its
contentionof a combatrole despitetheir civilian appearance.
63. There is no legal foundationfor killing protected personson the basis of suspicionor
even on the basisof evidenceof their supposedlymenacing activitiesor possible future
undertakings. On the contrary,article 27 of the Fourth Geneva Conventionprovides for the
respect of protected persons, article32 explicitly prohibits theirkilling under such conditions,
and article68 places restrictions onthe applicationof the deathpenalty and, in any event,
requires a priorjudicial trial.
64. As the evidenceindicates, Dr.Thabat and severalothers who were targetsof political
assassinations could have been arrested whena ,s was thecase in this instance,he made almost
dailytrips to points under Israeli securitycontrol. The Commission concludes that thepractice
of targeted politicalassassination,which is fully acknowledgedby the Governmentof Israelat
its highest levels,violates a number of provisions of theFourth Geneva Convention. It alsoElCN.412001/121
page 20
representsa grave breach of the Convention,which in article 147refers to "wilful killing" in this
connection.Further, article 146callsupon HighContracting Parties to enforce this prohibitionin
relation tothose responsible for its violation.
VII. SETTLEMENTS
65. Jewish settlementsin the West Bank(includingEast Jerusalem) and Gazafeature
prominentlyin the present conflictbetween Israel andthe Palestinian people. Thisreport focuses
on the implicationsof the settlements forhumanrights andinternational humanitarian lawduring
the secondintifada.
66. Israel argues that the issue of Jewishsettlementsis a political one tobe resolved in
negotiationsbetween Israel andthe Palestiniansoverthe political future of the OPT.
Palestinians,on the other hand, see the settlement issueas a major impediment to the peace
process anda question govemed by international law. They argue that settlementsare unlawful
as they violate article 49 (6) of the FourthGeneva Convention,which prohibits an occupying
Power from transferring partsof its own civilian populationinto the territory it occupies. The
internationalcommunity has given its ovenvhelming supportto the Palestinian position.
Repeatedresolutions of both the SecurityCouncil andthe General Assembly condemnJewish
settlements inthe West Bank and Gaza as a violationof the Fourth Geneva Convention. The
same attitude is adopted by the InternationalCommitteeof the Red Cross.
67. The Commission is itselfof the opinion thatJewish settlements in the West Bank and
Gaza violate article 49 (6) of the Fourth GenevaConventionand place a seriousobstacle inthe
way ofdurable peace.
68. Since 1967,Israelhas been responsiblefor establishing, financing andprotecting Jewish
settlementsin the West Bank and Gaza. Initially thisprogramme of creeping annexation pursued
by means of the requisitioning andoccupationof Palestinianland wasjustified by Israelon
security grounds. This pretext has long beenabandoned. Indeed, Yitshak Rabin,while he was
PrimeMinister and Ministerof Defence, acknowledged thatmost of the settlementsadded
nothing tosecurity and in factwere a burdenon the anny. Most settlements aretoday inhabited
by civiliansettlers motivated eitherby theideology ofZionist expansion or by the comforts ofa
suburban wayof life, subsidizedby the Government of Israel. From the perspective of the
Government,settlements create factual situations onthe ground that serveto establish political
control overthe occupied Palestinianterritories.
69. Today there are some 190settlementsin the WestBank and Gaza, inhabited by
approximately380,000 settlers,of whom some 180,000 livein the East Jerusalemarea.
Settlementshave expanded considerablysincethe startof the Oslo peace process and accelerated
underthe Prime Ministershipof Mr. Barak. Settlementshave continuedto expand sincethe start
of the secondintifada. The map in annexIII gives anindication of the extent to which
settlementsare scattered throughoutthe territories, andthe population of the different
settlements. Settlements differconsiderably in size andlocation. Some number
over 10,000inhabitants, while others have lessthan 100inhabitants. Someare situatedat a
considerabledistance from Palestinian towns, whereasothers are situatedwithin a Palestinian
city,as, most prominently, in the case of the Jewishsettlement in Hebron, or on the doorstepof a E/CN.4/2001/121
page 21
Palestinian villageor refugee camp. The settlement of NeveDekalim, for instance, is situated
adjacent to thecrowded refugee camp of Khan Yunis. It was here that the Commission came
under gunfire from the IDF.
70. In Gaza, settlement roads runthrough Palestinian territory and cross roads used by
Palestinians,causing great traffic congestion for Palestinianswhose vehicles are required to halt
every time a settler or military vehicle approaches a crossroad. Inthe West Bank, on the other
hand, Israel hasbuilt a vast road system, running for some 400 km, which bypasses Palestinian
population centresand enables settlers and military forcesprotecting them to move speedily and
safely through theWest Bank. To achievethis, 160,000dunums of land were requisitioned,
much of it under cultivation by Palestinian farmers. Moreover, in some instances, Palestinian
homes were demolishedwithout compensation for the purpose of constructing this network of
bypass roads. These roads prevent the expansion of Palestinianvillages and undermine the
economic development of Palestinians by restricting Palestinianmovement and impeding the
flow of commerce and workers from one Palestinian area toanother. The scale of the investment
in this roadnetwork raises troubling questions aboutIsrael'slong-term intentions for the
West Bank.
71. The relationship between settlers and Palestiniansis an unhappy one and each sideviews
the other with hostility, angerand suspicion. Protectedby the Israeli military, andexempt from
thejurisdiction ofthe courts of the Palestinian Authority, settlershave committed numerous acts
of violenceagainst the Palestinians and destroyed Palestinianagricultural land and property.
Israelijustice has often either turned a blind eye to such acts or treated them with leniency
bordering onexoneration. Inevitably, thishas fuelled the resentment of Palestinians, who
regard Israelijustice as biased in favour of settlers. Sincethe beginning of the intifada
on 29 September2000, incidents ofsettler violence havedramatically increased. Palestinian
hostility to settlershas grown alarmingly since the startof this intifada and most of the Israelis
killed in the presentconflict have been settlers orsoldiers charged with the task of protecting
settlements androads leading to settlements.
72. Settlementsare a major obstacle in the way ofpeace between Israelis and Palestinians.
First, they virtually foreclose the possibility of a viable Palestinian State as they, together with
the road systemconnecting them, destroythe territorial integrityof Palestine. In this sense,they
act asa major impediment tothe exercise of the right toself-determinationwithin the
internationally recognized self-determinationunit of Palestine, i.e. the territory occupied by
Israel after the 1967 war. Secondly, settlementsprovide daily evidence of the violation of
international lawand the failure of the international community,acting through the
United Nationsand the High Contracting Parties to the GenevaConventions, to remedy such a
situation. The despair and cynicism in the Palestinian community about the willingness ofthe
internationalcommunity to enforce the rule of law is in largemeasure due to its failure to halt
the growth ofthe settlerpopulation and to persuade theGovernment of Israel to reverse this
practice.
73. The link betweensettlementsand violence in the present intifada is clear. Many of the
acts of violence carriedout by the IDF and settlers that have resulted inPalestinian deaths and
injuries have occurredon the heavily defended roads leading tosettlements or in the proximity of
settlements. Settlementsprovide a visible and proximate targetfor the anger fuelled by years ofE/CN.4/2001/121
page 22
Israeli occupation. The IDF convoys andbases in the proximity of settlements aimed at the
protectionof such settlements havebeenthe focal point ofPalestinian demonstrations,violence
and sharpshooting. Likewise,much of the Palestinianproperty bulldozed bythe IDF has been
destroyednot in the interests of militarysecurity, but the securityof settlers. Homes,fruit and
olivetrees and cropshave been destroyedby the IDFin order to make settlers feel moresecure
and to facilitate theiraccess to their settlementsby means of protected roads.
74. Settlers,too, have suffered fromtheir proximityto the Palestinian people. As the most
visible symbolsof occupation, they are obvioustargets forPalestinian gunmen.
75. Without settlementsor settlers, therean be no doubt that the number of deaths and
injuriesinthe present intifada wouldhavebeen but a small fraction of their current numberand,
quitepossibly,the present intifadamight nothave occurred. Both Israelis and Palestinians are
thereforepaying a high price in terms of life,bodily integrity and property for a programmethat
violatesa cardinal principle of internationalhumanitarian law.
76. Settlementsact as a perpetual reminderto the Palestinian people ofthe humiliation of
militaryoccupation. This sense of humiliation is aggravated by the apparentlycomfortable way
of life ofthe settlers, whose standardof livingcontrastsarplywith the poverty of their
Palestinian neighbours. Refugees in crowded camps, withpoor sanitation and limited water
resources,inevitablyview with envy and anger settlementswith swimmingpools and
well-wateredlawns.
77. Palestinianwitnesses before the Commission, fromal1sections of the community,despite
being ofdifferentpolitical persuasions andfrom differentincome groups, spokewith equal anger
and resentmentaboutthe presence of settlements andsettlers in their territory. Manyclaimed
settlementswere a prime causeof the present intifada,a view shared by international
organizationsworking inthe West Bank andGaza.
78. The Commission reaffirmsthat settlementsin the West Bank andGaza constitutea major
violation ofinternationalhumanitarian lawand identifythe presence of settlements and settlers
as a primary cause of many violations ofhuman rights in the OPT.
VIII. DEPRIVATIONOF THE ENJOYMENTOF ECONOMIC AND SOCIAL
RIGHTS: EFFECTS OF CLOSURES, CURFEWS, RESTRICTIONSON
MOVEMENT AND DESTRUCTIONOF PROPERTY
Introductorynote
79. It needs to be kept in mindthat the Palestinian population inthe occupied territories is,
evenunder normal conditions, verypoor, particularlythe 50per cent of the Palestinians living in
refugeecamps. To impose additional burdenson such a population is inevitablyto create
patterns ofsevere material, socialand psychologicalhardships. These hardships entai1denials of
basic humanneeds, as protected by internationalhuman rights standards, which raises important
issues of international law.To claim a securityjustification forpolicies that inflict such
pronounced harrn imposesa heavyburden of persuasion onthe claimant, in this case the
Governmentof Israel. The interna1closuresseem to have a mainly punitive characterquite E/CN.4/2001/121
page 23
unrelated to security and are more likely tohave the opposite effect of inflaming Palestinian
resistance. Even external closures, especially forthe import ofbuilding materials and the export
of agriculturalproducts, would seem to be unrelatedto the maintenance of security. The
condensed presentationof the effects of closure and relatedpolicies in this section of the report
must be read with such considerations in mind.
Restrictionson movement
80. Since 29 September 2000, Israelhas imposed severerestrictions on freedom of
movement in the occupied territories. During the 123-dayperiod from 1October 2000
to 31January 2001, the Israeli-Palestinianborder was closed for labour and trade flows
for 93 days,or 75.6 per cent ofthe time. Internal movement restrictionsand internal closures -
partial or severe - were in place for 100per cent of the timein the West Bank and for 89per cent
of the time in Gaza. The Dahania Airport in the Gaza Strip,the only Palestinian airport, was
closed forover half of this period. Duringthis 123-dayperiod, the international border crossings
to Jordan from the West Bank and to Egyptfrom Gaza were closed for more than 20 per cent
and40 per cent of the time, respectively. The safepassage connecting the Gaza Strip and the
West Bankwas closed from 6 October, greatly obstructing travelfor Palestinians and
diminishingthe governmental effectivenessof the PA.
81. The cumulative effect of these restrictionson the freedomof movement of people and
goods is understandably perceived bythe Palestinians affectedas a siege. It has resulted in
severe socio-economichardships in the Palestinian territory. The internal closures have
effectivelysealed Palestinian population centres and restrictedmovement from one locality to
another. The restriction onthe entry of Palestinians intoIsrael has meant denial of access to
their places ofwork in Israel to an estimated 100,000Palestinians. The economic results have
been devastating: the families of these workers are nowsuffering from a complete lack of
income, threateningthem with destitution. The World Bank'sprojection that the impact of
closure willraise unemployment to 50per cent and thepoverty rate to 43.7 per cent in 2001 has
almost beenrealized.
Internalclosure
82. The internalclosure has disrupted life within the territories. Workers are unable to reach
their placesof work. Produce from farms cannot reach markets. Shops and commercial offices
areunable to open. From 8 October, numerous limitations were placedon passage betweenthe
north and the south of the Gaza Strip and movement betweenGaza City and the cities of
Khan Yunisand Rafah wasprevented almost entirely. Movement within the West Bank has
become nearly impossible. Hundreds of IDF checkpointshave been erected throughout the
West Bank and entry to and exit from cities requires passing throughthem. The IDF has placed
checkpointsat the entrances to al1villages andentry and exit are possible only via dirt roads,
entailingenormous hardships. Trips that once took 15minutes nowtake several hours. In some
of the villages, mostly in areas near settlements and bypass roads,the dirt roads have also been
blocked with largeconcreteblocks and piles of dirt, and residentsare imprisoned in their
villages. The Commission itself observed such IDF checkpointsand concrete blocks and piles of
dirt obstructingaccess.E/CN.4/20011121
page 24
Externalclosure
83. The closure of the internationalborder crossingswith Jordan and Egypt, as well as the
restrictionson movement of goods from Israel to the territories,has had a direct negative effect
on al1sectorsof the economy. The near total interruption ofthe supply of basic construction
materialshas closed factories andplants dependent on these materials for their production
activities. The construction and building sector inthe Palestinian territories hasbeen practically
suspendedowing to imports of basic construction materialssuch as cement, steel and timber
being deniedentryby the IDF throughtheir controlof border checkpoints. This, in tum, has
resulted inthe unemployment of tens of thousands ofworkers and employees in the construction
and buildingsector. The overall dismption of the economy and unemployment,together with
mobilityrestrictions and border closures,have resultedin an average unemployment rate
of 38 per cent (more than 250,000persons) as compared to 11per cent (71,000persons) in the
firstnine months of 2000. Accordingto one estimate,unemployment now directly affects the
income ofabout 910,000 people or 30per cent of thepopulation.
Curfews
84. Curfews havebeen imposed in certain areasof the occupied territories, whichin effect
imprisons anentire population intheir homes. Forexample,Palestinians in the H2 area of
Hebron have been under curfew almostcontinuouslysince October 2000. The curfews appearto
be imposedfor the convenience of settlersin the area asthey do not applyto settlers. The
character andtiming of Israel's restrictionson the freedomof movement challenge the
contentionthat these restrictions are dictated purelyby security considerations: Israel has
imposeda sweeping closure, curfew and siegeon millions of people, rather than on individuals
who posea security threat. In addition,the policy ofrestrictions of movement discriminates
between thetwo populations living in theoccupied territories,namely Palestinians and
since the restrictions are imposedexclusivelyonthe Palestinian population. in
non-Palestinians,
many cases,the explicit aim of the restrictionsis to ensure freedom of movement forthe settler
populationat the expense of the local population.
Negativeeconomic impacts
85. In the absence of border closures, per capitaincomewas projected to be aboutUS$2,000
in the Palestinianterritories in the year 2000. As a result of border closures andinterna1
movementrestrictions, this is estimated to be reduced to US$ 1,680a , decline of 16per cent.
The gravityof this negative impact is measured, however,by the disproportionatelyhigh impact
on peopleliving below the poverty line (estimatedby the WorldBank at US$2.10 per person
per day in consumption expenditures). The number ofpoor is estimated to have increased from
about 650,000persons to 1million persons,an increaseof over 50 per cent. Giventhe
continuingclosures and restrictions of movement ofpeople and goods and the resultant
unemploymentand total deprivationof income toincreasingnumbers of the population, poverty
andnear destitution are mounting. Humanitarian assistancehas dramatically increased. E/CN.4/2001/121
page 25
Economiclosses
86. The direct economic losses arising from movementrestrictions are estimated
at 50 per cent of gross domestic product (GDP) forthe four-monthperiod of the second intifada
and 75 per centof wage income earnedby Palestinianworkers in Israel. The GDP lossis
estimatedat US$ 907.3million, whilethe loss of labourincome from employmentin Israel is
estimatedat US$ 243.4 million. Thetotal loss is estimatedat US$ 1,150.7million. The loss is
about US$ 11million per working dayor US$ 3 per person per working day duringthe
period 1October 2000-3 1 January 2001. Significantdecreases in earnings in the transportation
sectorhave been reported as a result of the interna1siege. The tourism sector has also reported
significant decline.
Public sector revenuelosses: revenuelosses and increased socialspending
87. There have been significantlossesto the public sector in the form of lost revenues.
Domesticincome andvalue addedtax (VAT)revenueshave been reduced as a result of lower
levelsof domesticincome causedby disruptionsin production andreduced labour flows into
Israel. External revenues, mainlycustoms and VATrevenues associated with imports from
Israel and abroad,have been reducedby lower commodityflows causedby movement
restrictions andreduced consumerdemand. In 1999, 63 percent of al1Palestinian Authority
revenues were inthe form of transfers of receipts collectedby the authoritiesnder the terms of
the Paris Protocolon Economic Relations of 1994. VAT,customs, income tax,health fees and
othertaxes collectedby Israel on behalf of the PA areestimated at US$ 53 million monthly.
Theserevenues havebeen withheld fromthe PAsinceOctober 2000. As a result of the eroded
revenue base,the PA has been unable to pay salaries to itsemployees.
Destruction of property
88. Therehas been continued destruction of property, inparticular in the vicinityof
settlements or bypassand access roads to settlements,allegedly on grounds of militarynecessity
or security considerations. On 7 October 2000, Israeli tanksand bulldozers invaded the
NetzarimJunction and destroyedtwo residential buildingscomprising 32 apartments nearthe
Israeli militaryoutpost. On 8 October,the IDF destroyed aniron-processing factory in the
Netzarim area,while in the same area bulldozers swept theagriculturalland on the south-eastern
and south-westernsides of thejunction. On 16October,bulldozers swept land to the north of
NeveDekalim settlement. On 19 October,the IDF swept landleadingto the Gush Katif
settlement bloc. The Commissionvisited this area and observedthe destruction of the farms, the
sweeping ofthe land and the destructionof citrus and olive trees. Thisprocess of destructionof
farms, cuttingdown of fruit trees and demolition of greenhousesplanted with vegetables
continues. The Commissionreceived evidencefrom victimswhose homes andgreenhouseshad
been destroyed, citrusand olive trees uprooted and farmlandssweptby bulldozers.
89. Accordingto one estimate,the Israeli authorities demolished223 Palestinian-owned
buildingsduring2000: 68 in the West Bank (including EastJerusalem) and 155in the
Gaza Strip.E/CN.4/2001/121
page 26
Effect of closuresand movement restrictions on healthcare
90. The Commission received evidenceof the restrictions obstructing access by thesick and
the wounded as well as pregnant women to hospitals. There have also been instanceswhere the
prolongedclosure of outside borders, including theairport in Gaza, impeded the transfer of
woundedPalestiniansto other countries for treatment. An example of the effect of denial of
access tohospitals is provided bystatisticaldata from St.Luke's Hospital inNablus, which
reporteda 38per cent decline in the admission rate,a 29 per centdecline in the occupancyrate,
a 53 per centdecline in the number of surgicaloperationsperformed, a20 per cent declineinthe
number ofbabies delivered, a48 per cent decline in thenumber of patients in the intensive care
unit, a 49 per cent decline inthe number of generalpractice patients, a 73 per cent declinein the
number ofvisits to specialty servicesand a 30per cent decline in the number of physiotherapy
cases in theperiod October-November 2000as comparedto the sameperiod in 1999.
Effectof closures and movement restrictions on education
91. Sincethe beginning of October2000,more than 40 schools are reported to havebeen
closed orunable to operate owing to curfews or closures. In the centre of Hebron, 34 schools
have beenclosed, resulting inunemployrnentfor more than 460 teachers, and 13,000 students '
were reported tobe without educational facilities. FourPalestinian schools in Hebronhave been
closedby the IDF and turned intomilitarybases: the M'aref School, Usama bin Munkez School,
the Johar Schooland the Al Ukhwa School. Severalthousand children are reported alsoto have
hadto be permanentlymoved from school premisesas a result of darnageto the school structure.
92. Schoolsnear flashpoints - 173 inthe West Bankand 23 in the Gaza Strip - werethe worst
hit. They weresubjected to severalkinds of assault, includingbombing by the Israeliarmy and
shootingby settlers.
Violations ofinternationally recognizedhumanrights normsand international
humanitarian law
93. The measures of closure, curfewor destruction ofproperty described above constitute
violations ofthe Fourth Geneva Convention andhumanrights obligations binding upon Israel.
Destruction ofproperty is prohibitedby article 53 of the Fourth Geneva Convention,unless such
destruction is renderedabsolutelynecessary for militaryoperations, which does not appearto be
the case formuch of the destruction carried out. Otherobligationsunder the Fourth Geneva
Conventionaffectedby closures are those under articles23,55 and 56. These require the free
passage ofconsignments of medical and hospital storesand the freepassage of foodstuffs,
clothing andmedicines intended forcertain vulnerablecategories of persons and imposea duty
to ensurefood andmedical suppliesto the populationand to ensure and maintain medicaland
hospitalestablishments and servicesand public health andhygiene in an occupied territory.
94. Humanrights noms are also apposite in thecontext of the closures because, inthe
InterimAgreement, Israel andthe Palestinian Councilaccepted that they should exercise their
powers andresponsibilitiespursuantto that Agreementwith due regard to internationally
acceptednorms and principles of humanrights and therule of ~aw.~Human rights violatedby E/CN.4/2001/121
page 27
the closures includethe right to work, internationallyrecognized in article 6 of the International
Covenanton Economic, Socialand Cultural Rights. The severe socio-economichardships
causedby the restrictions on movement constitutea violation of the right to an adequate standard
of living recognized inarticle 11 ofthat Covenant. Destruction ofhouses that leavesthe
occupantshomeless also violates this right,sinceit specificallyincludesthe rightto adequate
housing. The closuresand movementrestrictions interferewith the right of everyoneto
education. Childrenand students are preventedfrom attending classes,despitethe duty of States
to make secondaryand higher educationaccessible to al1by every appropriatemeans. In
addition, restrictionson movement arealso placed onjournalists. This affects their reporting of
events andconstitutes a violation of their freedomof expression and, indirectly, of the
population's right toseek and receive information,recognized in article 19of the Covenant.
This rightmay be subjected to certain restrictions, butonly in certain circumstancesand notas a
generalrule. The Palestinian Authorityhas also restrictedthe freedomof movementof
journalists.
95. Finally,attention is drawnto article3of the Fourth Geneva Convention,which prohibits
collectivepunishment. Israel has invoked securityconsiderationstojustify closures and other
measuresdescribedabove. From the Commission'sown observations,it would appearthat
while in some instances security considerations mayjustify temporary closures, the
comprehensiveand protracted closures,as well asthe scale and nature of the destruction of
property of Palestiniancivilians, is best regarded as collectivepunishment.
IX. PALESTINIAN REFUGEESAND THE SECOND INTIFADA
96. The Commission seeksto draw attention to thedistinctive vulnerabilityof Palestinian
refugeesas a specialcase of hardship duringthe courseof the second intifada,particularly asa
result of the Israelipolicies of closure and blockade. Itneeds to be appreciatedthat, accordingto
UNRWA figuresfor 2000, there are 1,407,621registered Palestinian refugees living in the
West Bankand Gaza, comprisingover 50per cent of the Palestinianpopulation in these
territories. That figure represents only38per cent of the totalPalestinian refugee population,the
remainder being spreadout mainly in Jordan, Lebanonand the SyrianArab Republic. There are
two sets of issuesrelevant toOurinquiry: first,the vulnerabilityof Palestinian refugees livingin
refugeecamps on the West Bankand Gaza, and second,the so-called "rightof return" issue.
97. There is, first of all,the anomalous statusof Palestinianrefugees due to their exclusion
fromthe protective mechanisms and responsibility of UNHCR. Noother refugee communityin
the world isso excluded. UNRWA was established in1949to address the specific concernsof
Palestinianrefugees and became operational in 1950. This specialregime acknowledgingthe
importance of therefugee dimension ofthe Israel-Palestinerelationshipwas reinforced overthe
yearsby criticalUnited Nations resolutions dealing withthe conflict. UNRWA was given
responsibility forhumanitarian aspects ofthe international effort toalleviate the material
suffering of Palestinianrefugees,but it was not entrusted with anyprotective functions. These
functions were assignedto a parallel entity calledthe United NationsConciliation Commission
for Palestine(UNCCP), which,ironically, was established in response toGeneral Assembly
resolution 194(111)calling for the protection of Palestinian refugees.Unlike UNRWA,
UNCCPhas been incapableof carrying out its functions,encounteringpolitical and financialE/CN.4/2001/121
page 28
obstaclesfrom its inception. Although UNCCPcontinuesto exist on paper, it lacks a budget and
personnel, andis effectively defunct. Yet, thisorganizationalstructure continuesto definethe
legal status of Palestinian refugees.
98. In accordance with the 195 1 Convention relatingto the Status of Refugees,protectionis
accordedto al1refugees under the authorityof UNHCRexcept forthe Palestinians. They are
excludedbecause of article ID of the 1951RefugeeConvention,which provides:
"This convention shallnot applyto personswho are atpresent receiving fromorgans or
agenciesof the United Nations otherthan the UnitedNations High Commissionerfor
Refugeesprotection or assistance."
Despitethe failure of UNCCP to supply the anticipatedprotection, Palestinian refugeesremain
in limbo andhave never in the more than half a centuryof their existence been incorporated
withinthe UNHCR regime.
99. Sucha result is particularly disturbingas article 1Dexplicitly recognizes thepossibility
that alternativeforms of protection may fail for one reasonor another. The languageof the
second paragraphof ID is clearbeyond reasonabledispute on this matter:
"When suchprotection or assistancehas ceased for any reason, without thepersons
being definitively settled in accordance withthe relevant resolutions adopted bythe
GeneralAssembly of the United Nations,thesepersons shall ipsf oacto be entitledto the
benefits ofthis Convention."
Thereis no discernible reasonto refrain from implementingthis inclusionaryprovision, which
should havebeen implemented decades ago.
100. The issue is nottrivial. For onething, theCommissionwas repeatedly told by a variety
of witnesses,supplemented by documentarymaterials,that the refugees in the campsin the
occupied territorieswere enduringhardships that exceededthose being experienced by the
general Palestinianpopulation, andthat UNWRAofficiaisfelt unable to raise questions ofa
protective nature,regarding them as outsidetheir humanitarianmandate and of a "political"
character.
101. Theseprotective concerns aredirectly associatedwith the distinctive pressures exertedby
Israeli responsesto the second intifada. The refugeecamps are often prominent flashpointsin
relations withthe IDF and the settlements, promptingretaliatory "security" measures, especially
prolonged closures,including blockagesof access roads. Refugees are trapped in these
overcrowdedcamps, prevented from going to placesof employmentand often deniedaccess to
educational andmedical facilities. The incidence ofdestitution resulting from theimpactof the
second intifadais significantlyhigher forrefugeesthan for non-refugees, and is felt more keenly,
as refugees lack landfor subsistenceagriculture or withinwhich to move about. Ourvisits to
severalPalestinianrefugee campsrevealed tous the special sense of material and psychological
hardship associatedwith the confinement and curfewsof this period of intifada. Under such
conditions,it is hardly surprisingthatmuch of the supportfor Palestinian militancy andarmed
struggleis generated within the refugee camps. ElCN.41200111 21
page 29
102. The second,wider question,which is associatedwith the right of return, concernsthe
future ofrefugees outside the territories as well as those within, and is mostlybeyondthe scope
of the Commission's centralmandate. Its relevancearises fromthe degree to which Israelis
insistthat acceptingsuch a right wouldbe an actof suicide onthe part of Israel andthat and no
Statecanbe expectedto destroyitself. Suchan apocalypticapproachto the refugee issue
obstructs overallmoves towards ajust peace.
103. In conclusion,the Palestinianrefugeeswithinthe territories seem worse off than the
Palestinian refugeediaspora in neighbouringcountries. Further,the deteriorationof their
circumstancesthroughout the WestBank and Gazahas been accentuatedby the heightened
tensions and violenceof recent months. Theserefugeesrequire a variety of emergency
protections thatcan only be providedby a concertedeffort on an urgent basis atthe international
level. UNRWA,with itsresources alreadystrainedand its operating conditionssubject to
interference,is not capable of providingthe necessary protection.
X. CONCLUSIONSAND RECOMMENDATIONS
104. The commission ofinquiry has been deeplymindfulof its responsibilityto exercise every
careto be objectiveand impartial in gatheringinformation andevaluating the evidenceupon
which it would base itsconclusions andrecommendationswith the aim of calling attention to
violationsof human rights and international humanitarianlaw since 29 September 2000,and
encouraging futurecompliance with international obligations tothe extent possible.
105. In making its recommendations,the Commissionfrom the outset emphasizes theneed to
understand thecontext and circumstancesin which violations ofhuman rights andbreaches of
international humanitarianlaw have occurredand the situationwhich has given rise to an
ascending spiral ofviolence since the end of September2000, resultingin a seriousdeterioration
of thehuman rights situation.
106. The historical context isone of conflict andsuccessivewars (over 50years), prolonged
occupation(over 30 years) anda protractedpeace process (over 7 years). The peoples affected
continueto suffer froma legacy of distrust, humiliation and frustration,only occasionally
relievedby glimmeringsof hope, whichhas al1but disappearedof late.
107. The most worryingaspect of the recent escalationof violence leadingto the loss of lives,
disabling injuries caused to thousands,and the destructionof property and livelihoods is that the
hopesand expectations createdby the peace process are for the moment being smotheredby
mutualperceptions ascribingthe worst of motivesto each other, thus generating intensedistrust
and negativeand destructiveemotions.
108.
It is important toemphasizethat both the Palestinianpeople andthe people of Israel have
a yearning for peace and security,and that a preconditionfor achievingajust and durablepeace
is forevery effortto be madeon al1sidesto ease tensions, calm passions and promote a culture
of peace. This couldbe helped if theprocess throughwhich negotiations for peace arepursued
is transparent,so that both Palestinianand Israeli public opinioncanbe built up in support of the
process andof its eventual outcome. Inthis way, themutual confidenceupon which a durable
peacemust rest could be nurtured.EICN.4/20011121
page 30
109. The Commissionwas encouragedby the extentto which its own assessmentsof the main
issues addressed inthe report substantiallycoincided withthe most trustworthy third party
views, includingthose of diplomaticrepresentatives ofthe European Union and senior
international civilservants with yearsof experience in theregion. Thus, an informed and
impartialconsensus reinforces the conclusionsand recommendations set forth here.
110. It is withan understanding of the tragichistory of the peoples involved,and its
psychologicallegacy, that Ourrecommendations, aimedat discouraging the persistence of recent
violationsof human rights, are set out in three parts. The first part seeksto addresstheroot
causesthat need to be resolutely addressedand resolved. The secondpart lists safeguards and
proceduresthat need to be observed whilenegotiationsaimed at a comprehensive,just and
durablepeace are pursued in goodfaith. Thethird partpresents a series of measureswhich can
be taken immediatelyto deter further violence and to endthe destruction of lives, propertyand
livelihoods. The fourth part is more ambitious,recommending steps for establishing aclimate
conducive to theemergence over time of ajust and durable peace forthe peoples of Israel and
Palestine.
1. Conditions for ajust and durable peace
111. A comprehensive,just and durablepeace is to be sought through negotiationsin
good faith thatwould end the occupationand establisha dispensation that meets thelegitimate
expectations ofthe Palestinian people concerningthe realization of their right to
self-determinationand the genuine securityconcerns ofthe people of Israel.
112. While noting that it is the Israeli position thatoccupationhas in effect endedin much of
the occupiedterritories following the agreements reachedleading to the establishment of the
PalestinianAuthority, as well as the fact that the ultimate disposition of the settlements inthose
territoriesis a matter for negotiation between theparties, itneeds to be recognizedthat, fromthe
Palestinianperspective, so long as the settlements remainas a substantial presencein the
occupied territories,and Israeli military forces are deployed toprotect those settlements, no
meaningful endto occupation can be saidto have taken place.
2. Human rights and humanitarianlaw imperatives
113. The frameworkfor a final peaceful settlement andthe process through whichit is
pursued shouldbe guided at al1stagesby respect for human rights and humanitarianlaw andthe
full applicationof internationalhuman rights standards setout in the Universal Declaration of
HumanRights andin applicablehuman rights instruments, inparticular those relating to women,
children andrefugees.
114. An adequate and effectiveinternational presenceneeds to be establishedto monitor and
regularly report oncompliance by al1parties withhuman rights and humanitarian law standards
in orderto ensure full protection of the humanrights ofthe people of the occupied territories.
Suchan internationalmechanism shouldbe establishedimmediately and constitutedin sucha
manner as toreflect a sense of urgency about protectingthe human rights of the Palestinian
people. E/CN.4/2001/121
page 31
115. Protectionneeds to be accordedto the people of the occupied territories in strict
compliance with the1949Geneva Convention Relativeto the Protectionof Civiliansin Time of
War (FourthGeneva Convention). The High ContractingParties, individually and collectively,
need urgently to takeappropriate and effectiveactionto respondto an emergency situation
callingformeasuresto alleviate the daily sufferingofthe Palestinian people flowing fromthe
severe breaches ofthe Fourth Geneva Convention. ArticleOne of the Conventionplaces a duty
on the HighContracting Parties"to respect and ensurerespect" ofthe provisions of the
Convention"in al1circumstances". The Commissionrecalls that the Conferenceof the High
Contracting Partiesto the Fourth Geneva Convention,convenedin Geneva on 15July 1999, in
its concluding statementreaffirmed the applicability ofthe Fourth Geneva Conventionto the
occupied Palestinian territory,including EastJerusalem, andreiteratedthe need for full respect
for the provisions ofthe Convention inthat Territory, and furtherrecorded the following
decision:
Takinginto consideration the improved atrnosphere inthe Middle East as a whole, the
Conferencewas adjoumed on the understandingthat it will convene again in the light of
consultationson the developmentof the humanitariansituation in the field.
In view ofthe seriousdeteriorationof the humanitarian situationin the Territory, the
Commissionrecommends that theHigh Contracting Parties should actwith urgency to
reconvenethe Conference. Sucha Conference shouldestablish aneffective international
mechanism for taking the urgentmeasuresneeded.
3. Urgent measuresfor the protectionof human rights
116. It seems incontestablethat the Israeli Security Forces(Le.the IDF and the Israeli
PoliceForce) have used excessive anddisproportionateforce from the outset of the second
intifada, whether theirconduct is measuredby the standardsof international humanitarianlaw
applicable to armedconflict, the codesof conduct applicable topolicing in situationsnot
amountingto armed conflictor by the open-fire regulations binding uponmembers ofthe Israeli
Security Forces. Inthese circumstancesthere is an urgent needfor the Israeli Security Forcesto
ensurethat, even in life-threatening situations,greatcare is takennot to inflict injury on civilians
not directly involved in hostileactivitiesand notto cause disproportionateharm andinjury. In
non-life threatening situations, particularly demonstrationst,he security forces should comply
fully withthe policingcodes of 1979 and 1990,as well as their own open-fire regulations. Every
effort shouldbe made by the Govemment of Israel to ensurethat its security forces observethese
rules,that suchrules are made effectivelyknown to members ofthe security forces, that therules
are not arbitrarily andsummarilyalteredand that it is made clearto the security forces that
violations will result inaningfuldisciplinaryactionbeingtaken againstthem.
117. The Israeli SecurityForces shouldnot resort tothe use ofrubber-coated bullets andlive
ammunition, exceptas a last resort. Evenin life-threateningsituationsminimum forceshouldbe
used against civilians. The Israeli SecurityForces should beamply equipped and trained in
non-lethal meansof response, particularlyfor dealing with violentdemonstrations. Everyeffort
shouldbe madeto use well-establishedmethodsof crowd control.E/CN.4/2001/121
page 32
118. The use of force by the IDF in the exercise of its role of providing securityto settlersis
also subjectto international humanitarianlaw standards,includingthe Fourth Geneva
Convention, andcannot be used forpre-emptive shootingof unarmed civiliansin areas near
settlementsor on access and bypass roads leadingto settlements or for the destructionof
Palestinianproperty, includingthe demolitionof homes, the cutting downof trees andthe
destructionof farms, and appropriateinstructionsto that effect shouldbe issued to al1concerned.
119. Targetedshooting of individualsby the IDFor by settlers orby sharpshootersof either
side amounts toextrajudicial execution,which is a grossviolation of the right to life, constitutes
abreach of international humanitarianlaw andwould attractinternational criminal
responsibility. Instructions shouldbe urgently issued and disseminatedby al1the concemed
authoritiesimmediatelyto end suchtargeted killing.
120. Complaintsregarding the useof lethal force orthe excessive use of force which has
caused deathor serious injury should be investigated andpersons found responsible shouldbe
held accountableand should not enjoy impunity.
121. Immediateand effective measuresneed to be taken to end closures, curfews and other
restrictionsonthe movement of people and goods in the occupied territories so thatthe right to
livelihood andnormal economic activitiesare restored,as also the right of access to education
and health.
122. Immediate and effective measuresneed to be taken to prevent the destructionof property
in the occupiedterritories, includingthe demolitionof houses, the cutting down of fruit andother
trees, and thedestruction of farms and standingcrops by theuse of bulldozers and other means.
123. Prohibitionsand restrictions derogatingfrom the rights of the Palestinianpeople,
includingeconomic and socialrights, imposedby invoking security considerations must be
specificallyjustifiedand are in al1cases subject tocompliance with internationalhumanitarian
law standards.
124. Al1concerned authorities mustrefrain from measures that amount to collective
punishment. This would includewithholdingtransfer to the Palestinian Authorityof taxesand
duties collectedby the Governmentof Israel,the impositionof restrictions on movement,or
violent acts of reprisa1by eitherside.
125. Instructionsneed to be issued immediatelyby al1concerned authoritiesto security forces
strictlyto refrain from using force againstor impedingthe provision of medical relief and
treatment by those working for the Red Cross,the Red Crescent and Magen David Adom, and in
hospitals, and toensure protection to ambulancesand hospitals. These instructionsshould
require al1concernedto ensureunimpeded accessfor the sick, the injured andpregnant women
to hospitals.
126. Compensationshould be providedto victims ofunlawfuluse of force where this has
caused death,disablement, destruction of propertyor economic loss. E/CN.4/2001/121
page 33
127. Al1impediments to the flow of humanitarian assistance,now even more urgently needed,
should be removedas a matter of urgency and every effort should be made to facilitate the work
of the United Nationsand other bodies involved in providinghumanitarian assistance and
medical relief.
128. The life and safety of children and their access to education and health care should be
especially protected. Special instructions should be urgentlyissued prohibiting shootingat
unarmed children andpointing out that such acts wouldengage international and national
criminalresponsibility. Every care should be taken to ensure that children are not involvedin
situations wherethey expose themselves to risk of becoming victims of acts of violence.
129. Steps shouldbe taken to apply article 1Dof the 1951Convention relating to the Status
of Refugeesto ensure that a regime of protection under the authority of the United Nations
High Commissionerfor Refugees is extended to Palestinianrefugees, especially those currently
residingin West Bank and Gaza camps. Theserefugees have been particularly victimized during
the second intifada, are not now protectedby the application ofthe UNRWA framework and
urgently requireinternational protection on a priority basis.
130. A mutually acceptable comprehensive settlementmust deal equitably with the issue of
Palestinianrefugees and their rightful claims, includingthose refugees living outside of the
PalestinianTerritories. Such arrangements should be negotiated ina manner that is sensitive to
legitimate Israeliconcerns.
131. Al1restrictions on access to places of worship and al1holy sites should be removed and
access to themby al1faiths shouldbe respected.
4. Transforming the climate ofhostility
132. The Euro-Mediterranean Agreement between the European Communities and their
Member States andthe State of Israel declares in article 2 that their relationship is to be based on
respect forhuman rights and democratic principles whichguide their interna1and international
policy; this couldprovide the basis for an initiativeby the former to play a more pro-active role
in promotingacceptance and implementation ofthese recommendations and in supportingthe
holding of consultations and dialogue at al1levels betweenthe Palestinian people and the Israeli
people.
133. To improve prospects for durable peace, especially giventhe fundamental gaps in
perception thatcurrently separatethe two sides, it is stronglyrecommended that the Commission
on Human Rights take concrete steps to facilitate dialogue betweenrepresentative Israelis and
Palestiniansat al1levels ofsocial interaction, formally and informally. In this regard, the
Commission onHuman Rights is urged to convene a consultationbetween leaders of Israeli and
Palestinian civilsociety on a people-to-peoplebasis in Genevaat the earliest possible time. In a
similar spirit, toengage Europe more directly in the realities ofthe crisis the Commission on
Human Rights is urged to convenea round table of representatives ofEuropean civil society and
governmentto discuss steps that can be taken to alleviatethe suffering of the Palestinian people
andto ensure greater respect on both sides for human rights standards and for international
humanitarian law.E/CN.4/2001/121
page 34
134. In view of the comprehensive denial of humanrights and the continuingpattern of
behaviour violativeof international humanitarian law, thisCommission recommendsto the
Commissionon Human Rightsthat it establish a high profileperiodic monitoring andreporting
undertakingto considerthe degree to which the recornrnendationsof this report to the parties are
being implemented.
Notes
1
The resort toshootingby the Israeli police at Harem-al-Sharif/TempleMount
on 29 September2000 that started the second intifada was,by reliable accounts,not a response
to Palestiniangunfire. This raises a seriousquestion aboutthe insistence on the part of the
Government ofIsrael that lethal weapons haveonlybeen used in response to Palestinian
gunfire.
2
InterimAgreement of 28 December 1995, articleXIX. Withoutthis Agreement, Israel would
stillbe bound toensure civil and political rightsthat are non-derogable to the population of the
occupied territories. Article 1of the InternationalCovenanton Civil and Political Rights
requires that itprotect the rights of al1individuals subject toitsjurisdiction, that is individuals
under its effective control. The International Covenanton Economic, Social and Cultural Rights
doesnot refer to individualsunder the State'sjurisdiction, which makes its applicationto the
populationof the occupied territories moredoubtful. Israelbecame aparty to the two
InternationalCovenants in 1991. ElCN.412001/121
page 35
Annex 1
EXTRACTFROM RESOLUTIONS-511ADOPTEDBY THE
FIFTH SPECIAL SESSIONOFTHE COMMISSIONON
HUMANRIGHTS ON 19 OCTOBER2000
6. Decides
(a) To establish, on an urgent basis, arights inquiry commission,whose
membershipshouldbe based onthe principles of independenceand objectivity,to gather and
compile informationon violationsof human rights and actswhich constitutegrave breaches of
internationalhumanitarianlawby the Israeli occupyingPower in the occupied Palestinian
territories and tovide the Commission with itsconclusions and recommendation,withthe
aim of preventingthe repetition of the recenthuman rights violations.E/CN.4/2001/121
page 36
Annex II
HUMAN RIGHTS INQUIRY COMMISSION (HRIC)
PROGRAMME OF VISIT TO THE OCCUPIED PALESTINIAN
TERRITORIES AND ISRAEL
11-18FEBRUARY 2001
Professor John Dugard, Dr. Kamal Hossain, Professor Richard Falk
The Commissionerswere accompaniedthroughout themission by a Coordinator, a
SecurityAdviser,three professional officers,an interpreter andtwo secretaries. Additional
logistical support andinterpretation assistancewasprovidedby the local OHCHR offices,
UNRWAand UNSCO. The SecurityAdviser was inthe area continuously from 7 to
20 February.
Saturday, 10February (Gaza Strip)
Arriva1at Ben GurionAirport, Tel Aviv
Drive to Gaza City, GazaBeachHotel
Palestinian Authority Headquarters
Meeting with the Presidentof the Palestine National Authority
Mr. Yasser Arafat
Gaza Beach Hotel
Sunday, 11 February (Gaza Strip)
Palestinian Authority
9.30-10.15 a.m. Palestinian NationalSecurity- General Abdel-Raziq El-Majayda
10.30-11.30a.m. Ministry of Planning and InternationalCooperatio-
Dr. Ali Sha'ath
11.45a.m.-12.45 p.m. Ministry of Justice- Mr. FreihAbu Middain (Ministerof Justice)
1-2p.m. Lunchwith Minister of Justice
2.45-4 p.m. Consultations at OHCHR Gazaoffice
4.30-5.15 p.m. Ministryof Social Affair-Mr. Mahmoud M.Matair
(General Director) ElCN.41200111 21
page 37
5.30-6.15p.m. The Palestinian RedCrescent Society-Dr. Fathi Arafat
(Former Director)
6.30-8.45p.m. Ministryof Health- Dr. Riyad El-Zanoun (Minister of Health)
Monday, 12 February (Gaza Strip)
Gaza Beach Hotel -Meetings with NGOs
9-9.45 a.m. Palestinian Centerfor Human Rights - Raji Sourani(Director)
9.45-10.30 a.m. Al-Mezan Center ForHuman Rights - Issam Younis (Director)
10.30-11.15a.m. Gaza Community MentalHealth Programme- Dr. Eyad El Sarraj
(Director)
Palestinian Authority
11.15 a.m.-12.30 p.m. Ministryof Housing - Abdel Rahman Hammadand
AbdeKareenAbdeen
(Professor Dugard)
11.30a.m.-12 noon Palestinian AgriculturalRelief Committee-
Abed El KareemAshour
(Professor Falk and Dr.Hossain)
12noon-12.45 p.m. PalestinianMedicalRelief Committees- Abdel HadiAbu Khosa
Union of PalestinianMedical Committees - Dr. RabahMohana
National PalestinianSocietyfor Handicapped - Mohammed Zein
El-Dein
(Professor Falk andDr. Hossain)
United Nations Special Coordinator's Office (UNSCO) Headquarters -Collective meeting
with United Nations agencies
UNSCO -FrancisOkello (Deputy Special Coordinator)
World Food Programme(WFP) -Mushtaq Qureshi
UNICEF -Bertrand Bainzel
World Health Organization(WHO) - Dr. GiuseppeMasala
UNESCO- VeroniqueDauge
Officeof the Coordinator forHumanitarianAffairs- Nick Harvey
UNSCO Headquarters - Meetings with Palestinian resource persons
3.15-3.50p.m. HayderAbdel-Shafi,Commissioner,Palestinian
Independent Commission forCitizens' RightsE/CN.4/2001/121
page 38
3.55-4.30p.m. Ziad Abu Arnmer,member of thePLC, academic expert
4.35-5.10p.m. Abdel-RahmanAbu El-Nasr
(Presidentof Bar Association)
6.30-7.30p.m. InternationalCommitteeof the Red Cross (ICRC)
Stephane Jacquier
Al-DeeraHotelDinner
Hosted by Deputy SouthAfrica Representative, SusanHeher
Also present: PeterHansen, Francis Okello andStephane Jacquier
Tuesdav, 13Februarv (Gaza Strip and Jerusalem)
UNRWA (United NationsRelief and Works Agency)Headquarters, Gaza
9-10 a.m. Peter Hansen (CommissionerGeneral),
Karen Koning Abu Ziad(Deputy Commissioner-General),
Mian Qadrud-Din(Chef de Cabinet),
Lionel Brisson (Director ofOperations)
(list not exhaustive)
Visitsto the sites affected by bombing
10.30a.m. Stop at Netzarim Junction
Stop at Qarara area, at40 metres from the Kusufim road,
bulldozed land, demolition ofhouses and wells, uprootingof trees.
The CommissioninterviewedJomad MossallamAli Someiri, head
of a household of23members. Demolition began atnight, during
the period of Ramadan.
Khan Yunis Camp- visit to Tufah checkpoint whereonthe
previous day a number of Palestinians had been injured during
clashes with Israelis. The Commissionwas caught in an outburst
of crossfireinitiatedby the Palestiniande, which continuedwhile
the Commissionwas in the area. During this time, a child of
14years wasshot inthe stomachcausing extensive liver damage.
The x-ray andthe bullet (live .556round) were recovered bythe
Commission. One youth of20 years was shot in the testes.
Visit to local UNRWA office - interviews
Visit to Khan Yunis hospital- briefing by the Director, Dr Agha.
Visit to patients recoveringfrom exposure to tear gas ElCN.41200111 21
page 39
Stopon the other side of the Kusufim road in Qarara. Meeting
with a familywhose house was demolishedon 22 November 2000
by the IDF. They onlyhad 10minutes' notice andcould not
salvageany movable property. Three bulldozersworked for
three daysto clear the area. Altogether some 33 familieswere
affectedby demolition.
Lunch hostedby UNRWA atUnited Nations Reportingand
Evacuation Centre,Gaza
UNSCO Headquarters
5-6.45 p.m. Meeting withvictims and theirfamilies, (organizedby Ministryof
Social Affairs,General Workers'Union, Union of Medical Relief
Committeesand Gaza Community Mental HealthProgramme)
(Dr. Hossain)
Collectivemeetingwith the press
SuodAbu Ramadan (JournalistsAssociation)
Fayed Abu Shammalah (journalist, BBC)
Rasmalli(Dailynewsletter)
(Professors Dugardand Falk)
6.15-6.45p.m. Meeting with Minister ofEnvironment (YousifAbu Safya)and
colleagues
(Professor Falk)
Departurefor the West Bank -American ColonyHotel, Jerusalem
Wednesdav, 14 February(Jerusalem)
UNDP office, Jerusalem
United NationsDevelopment Programme (UNDP)
TimothyRothermel,SpecialRepresentative
American ColonyHotel, Jerusalem
10 a.m.-12.30p.m. Meeting with IsraeliNGOs
B'Tselem- Yael Stein (ResearchDirector)
The Alternative Information Center (AIC) SergioYahni
(Director)
The Associationfor Civil Rightsin Israel- Risa Zoll (Attorney and
International Relations)
Hamoked,Center forthe Defenceof the Individual -
Dalia Kerstein (Director)E/CN.4/2001/121
page 40
I'lam Center,Media Center for the Palestinian Societyin Israel-
Maria de Pina (Public Relations Coordinator)and FalastinIsrnail
(Director)
Mosawa Centerfor Arab Rights in lsrael - SanaHammond(Policy
Advocate)
Public Committee againstTorture in Israel Hanna Friedman
(Executive Director)
Arab Associationfor Human Rights - MohammedZeidan
(Director)
Rabbis for HumanRights - Rabbi Jeremy Milgrom and
Rabbi ArikAscherman
Physicians forHuman Rights - Dr. Hedva Radovanitz
(ExecutiveDirector)
Ihijaha Union of Arab Community-Based Associations -
Monica Terazi, ArneerMakhoulADALAH, The Legal Centerfor
Arab MinorityRights -Anna Massagee, JamilDakwar
Jonathan Krensky(journalist,Jerusalem Post)
Lunchbreak
3.30-4.30p.m. Avishai Margalit(philosopher)
4.30-5.30p.m. Mordechai Baron (historian)
5.30-6.30p.m. Ruth Gavison(law'professor)
Thursday, 15February (Ramallah and Jerusalem)
GrandPark Hotel, Ramallah
10.15-11.15a.m. H.E. Mr. RafiqAl-Natsheh (Minister of Labour)
11.30a.m.-12.15p.m. Dr. MustafaAl-Barghouti (political analyst)
12.15-1.15p.m. Luncheon withPalestine Legislative Council (PLC)
Ahmed Qu'rar- PLC Speaker
GhaziHananya -PLC Speaker's Deputy
Rawhi Fattouh - PLC Secretary
Aazmi Shun'aybi -PLC Member
Qadoura Fares - Chair of Human Rights Committee
MahmoudLabadi - PLC Director General
Ghassan Faramand(Director, Law Institute, Birzeit
University (BZU))
Abdul-Karim Barghouti,(Dean of Student Affairs, BZU) E/CN.4/2001/121
page 41
MudorKassis,Chairperson, (Departmentof Philosophy and
Cultural Studiesand Coordinatorof MA program-Democracyand
HumanRights,BZU)
Jonathan Kuttab(Al-Quds University) andMr. Raja Shehadeh
(lawyer)
Eileen Kuttab (Instituteof Women's Studies,Birzeit University)
3-3.40 p.m.
3.45-4.25p.m. Charles Shamas (expertin internationalhumanitarian law,
Centre forHumanRights Enforcement)
4.45-5.25p.m. Omar Dajani andStifanyKhouri (NegotiationsAffairs
Department)
5.30-6.10p.m. Nader Saed(Development StudiesProgramme, BZU)
6.15-6.55p.m. Ali-Jerbawi (Professorof Political Science,Birzeit University)
YMCAHouse,Jerusalem
Dinnerwith:
Amiram Goldblum (SettlementWatch, Peace NowMovement)
MossiRaz (Peace NowMovement)
EitanFelner (Directorof B'tselem)
Fridav, 16 Februarv (Jerusalem andRamaIlah)
Meetingsat the American ColonyHotel -Jerusalem
8-9a.m. Breakfast meetingwith membersof the European Union:
Nadim Karkutli andSylvieFouet (European Commission)
Lars Adam Rehofand Kim Vinthen (Office of the Representative
of Denmark)
Emelie Traff andElinorHammarskjold (SwedishConsulate
General)
AurélieDuhamel andEric Tison (French Consulate General)
Michael Ohrmacht(GermanRep. Office)
Eija Rotinen(Officeofthe Representativeof Finland)
Petros Panayotopoulos(Greek Consulate General)
Leo D'Aes(Belgium ConsulateGeneral)
Manuel Salazar (Spanish ConsulGeneral)
Gianni Ghisi (Italian ConsulGeneral)
Birgitta Tazelaar(Officeof the Representativeof the Netherlands)
IsoldeMoylan-McNally(Representativeof Ireland)E/CN.4/2001/121
page42
Meeting with Christianand Muslim religious leaders
Adnan Husseini, Head ofthe Islamic Trust
Sheik Mohamed Hussain, Muftiof Al Aqsa Mosque
Bishop of the ArmenianOrthodox Cornmunity
Father Theophilos, Greek Orthodox Patriarchate
Meeting atOrient House
10-10.45a.m. Mr. FaisalAl Husseini (OrientHouse -portfolio-PNA)
Grand Park Hotel, Ramallah - Meetings with PalestinianNGOs
12noon-1p.m. LAW (PalestinianSocietyfor the Protection of Human Rights and
the Environment)- Khader Shkirat (Director),Issa Shawki and
Dianne Luping
Defense forChildrenInternational, Palestine GeorgeAbu-Zolof
(Director)with Adam Hanieh, Khaled Kuzmar,SimonAwad and
Ibrahim Al Masri; Badil Resource Center- Ingrid Jaradat
(Director)
Lunchbreak - Grand ParkHotel
Al-Haq - Mohamed Abu-Harthieh(Director)
General Union For DisabledPersons -Ziad Amro (Director)
Jerusalem Centerfor Human Rights, Jerusalem Legal Aid Center-
Ihad Abu Ghosh(Director)and Haifa Alyssa
Democracyand Workers' Rights Center - Mazen Barghouty
(Director)
Al-Dameer forPolitical Prisoners Khalida Jarrar (Director)
Women's Center for Legal Aidand Counseling -Maha Abu
Dayya (Director)
Women's StudiesCentre
MandelaInstitute for Political Prison-Ahmed Al-Sayyad
(Director)
Duringthe afternoon,two meetings wereheld simultaneously,with
one Commissionerattendingone meeting and two Commissionersthe
secondmeeting.
Saturday, 17Februarv (Hebron/Bethlehem/BeitJala/Jerusalem)
Travelto Hebron
Briefingby members of Temporary InternationalPresence (TIP)in
Hebron
Directorof TIPH ElCN.41200111 21
page 43
Henrik Lunden (Senior Press andInformation Officer)
Velérie Petignat Wright (HeaStaff Director)
AngéliqueEijpe(LegalAdviser)
11-11.30a.m. Meeting with Mr. MustafaAl Natsha, Mayor of Hebron
11.30a.m.-12.15p.m. Travel to Bethlehem
Visit to AidaefugeeCamp in Bethlehem
Aida Basic Girls'School (UNRWA)and two shelled houses
Richard Cook (DirectorUNRWA Operations, WestBank)
Brett Lodge (Operations Officer,UNRWA)
Husni Shahwan (AreaOfficer for Hebron, UNRWA)
Yahia Daage(UNRWAteacher)
MakaremAwad (Reliefand Social Service Department,UNRWA)
2-3.30p.m. Retum to Jerusalem, brieflunch
American ColonyHotel
3.30-4.15p.m. SaidZedani (Directorof PalestinianIndependent Commission for
Citizens'Rights)
4.15-5.30p.m. Collectivemeeting withjoumalists
Sam'manKhoury (PalestinianMedia Center)
Nabeel Khateeb (Joumalist,Director of Media Institute, Birzeit
University) with the participation ofDr. Said Zedani
NabhanKrisha (PalestinianMedical Center)andAkvamHaney
(Editor-in-ChieJAl AyyamDaily) wereunable toparticipate as
they werestopped ut checkpoints.
Old Cityof Jerusalem
Consultationsathotel
Sundav,18February (Jerusalem andTelAviv)
American ColonyHotel, Jerusalem
9-10a.m. Mr. Ilan Pappe (Historian)
Avia Hotel, Tel Aviv
12noon-1 p.m. General (Ret.)ShlomoGazit
1.30p.m. Check-inat Ben GurionAirportfor 16:15departure .AnnrIsII
POPCL.ATIO >NIAPOF THE WEST BASK .\.yTDHEGAZ.\ STRIP
Yuvembcr2000
.ïoirrci'E..\NOW: The Settlrrncnu '.Varch Tem. Isrnci.
Tiie boundanes shdonor imply offtcral ~ndorsemencor by the Gnltcd Y.7tlons.
----- ANNEX 11
International Committee of the Red Cross, Statement to the
Conference of High Contracting Parties to the Fourth Geneva
Convention, Geneva, 5 December 2001,International Review of
the Red Cross, vol. 84,No. 847, September 2002, pp. 692-695 692 FAITSET DOCUMENTS
REPORTS ANDDOCUMENTS
Conference of High ContractingParties
to the FourthGenevaConvention
Geneva, 5 Decernber 2001
Staternentbythe International Committeeofthe RedCross
1.Pursuant tothe relevant provisions of international humanitarianlaw%);l
to the mandate conferred on it by the States party to the 1949 GeneG
Conventions, the International Committee of the Red Cross (ICRC) esta$;
lished a permanent presence in Israel, the neighbouring Arab countries
the occupied territories in 1967with a view toanying out its humanit&
tasks in the region and to working for the faithful application of inte3%
tional humanitarian law.
2.In accordance with a number of resolutions adopted by the United Na
General Assembly and Security Council and by the International Confe
ofthe Red Cross and Red Crescent,which reflect the view ofthe interna
community, the ICRC has always affirmed the de jure applicability
Fourth Geneva Convention to the territoriesoccupied since 1967 byth
of Israel,including EastJerusalem. This Convention, ratified byIsrael
remains fullyapplicableand relevant in the current contexof violen
Occupying Power, Israel is also bound by other customary niles re
occupation, expressed in the Regulations annexed to the Hague
respecting the Laws and Customs ofWar on Land of 18 October
3. In general terms, the Fourth Geneva Convention protect
population ofoccupiedterritories against abuses on the part ofanO
Power, in particular by ensuring that it isnot discriminated againstj
protected against al1forms of violence, and that despite occu~ati
it is allowed to live as normal a life as possible, in accordaYce
laws, culture and traditions. While humanitarian law confers ce
on the Occupying Power, it also imposes limits on the scope of
Being only a temporary administrafor of occupied territory9he
Power must not interfere with its original economic and social
organiiation, lepl system or demography It must ensure the
security and welfare of the population living under occupatio
implies allowing the normal development of the territor%
lasts for a prolonged period of time.4.More precisely, the Fourth Geneva Convention sets out rules aimed at
safeguardingthe dignity and physical integrity of persons living under occu-
pation, including detainees. It prohibits al1 forms of ph~sical and mental
ill.treatment and coercion, collective punishment, and reprisals against
protectedpersons or property. It also prohibits the transfer of parts of the
OccupyingPowerS civilian population into the occu~ied territory, forcible
transferor deportation of protected persons from the occu~ied territory, and
destmctionof real or personal property, except when such destruction is ren-
deredabsolutely necessary by military operations.
5.In the course of its activities in the territories occu~ied by Israel, the
ICRC has repeatedly noted breaches of various provisions of international
bumanitarian law, such as the transfer by Israel of parts of its population
i$..*the occupied territories, the destruction of houses, failure to respect
medicalactivities, and detention of protected persons outside the occupied
%:"
3%~itories. Certain practices which contravene the Fourth Geneva
gonvention have been incorporated into laws and administrative guide-
by the highest judicial authorities. While
the facilities it has been granted for the conduct of its
the ICRC has regularly drawn the attention of the
the suffering and the heavy burden borne by the
stinian population owing to the occupation policy and, in line with its
dardpractice, has increasingly expressed its concern through bilateral
ultilateral representationsand in public appeals. In particular, the
bas expressed growing concern about the consequences in humani-
'termsof the establishment of Israeli settlements in the occupied
es, in violation of the Fourth Geneva Convention. The settle-
olicybas often meant the destruction of Palestinian homes, the
tienof land and water resources and the parcelling out of the ter-
MeasUrestaken to extend the settlernents and to protect the set-
tailing the destruction of houses, land requisitions, the sealing-off
~adblocksand the imposition of long curfews, have also seriously
the daily life of the Palestinian population. However, the fact
ntS have been established in violation of the provisions of
eneva Convention does not mean that civilians residing in
3lernents cari be the object of attack. They are protected by
Tan law as civilians as long as they do not take an active part in6. The ICRC has also drawn the attention of the Israeli authorities to the
effects of prolonged curfews and the sealing-off of certain areas-by the Israel
Defense Forces. The resulting restrictions on movements have disastrous
consequences for the entire Palestinian population. They hamper the activi-
ries of emergency medical services as well as access to health care, work-
places, schools and places of worship, and have a devastating effect on the
economy. They also prevent, for months on end, Palestinian families from
visiting relatives detained in Israel. The concem caused by these practices
has grown considerably during the past 14 months as measures taken to con-
tain the upsurge of violence have led to a furtherdeterioration in the living
conditions of the population under occupation.
7. The ICRC has reminded al1those taking part in the violence that whenever
armed force is used the choice of means and methods employed isnot unlim-
ited. Today, in view of the sharp increase in armed conf&ntations, the ICRG
has to stress that Palestinian armed groups operating within or outside tl$
occupied territories are also bound by the principles of international human2
tarian law. Apart frorn the Fourth Geneva Convention, which relates to th$
protection of the civilian population, there are other universally accepted ru18
and principles of international humanitarian lawthat deal with the conduct%f
militaq operations. They stipulate in particular that only military objectivg
may be attacked. Thus indiscnminate attacks, such as bomb attacks
Palestinian individuals or armed groups against Israeli civilians, and a
intended to spread terror among the civilian population are absolutely
unconditionally prohibited. The same applies to targeted attacks on and
killing of Palestinian individuals by the Israeli authorities while those indi
uals are not directly taking part in the hostilities or immediately endang
human life. Reprisals against civilians and their property are also Pr
When a military objective istargeted, al1feasibleprecautions mustbe
minimize civilian casualties and damage to civilian property. To avoid
gering the civilianpopulation, those bearing weapons and those taking
améd violence must distinguish themselves from civilians.
8. Demonstrations against the occupying forces by the civilian POPu
under occupation or stand-offs between them aTe not acts of war-'
should therefore not be dealt with by military methods and means.
faced with the civilian population, Israeli forces must exercise resuain
use offorce must be proportionate, al1necessary precautions must be
avoid casualties, and the lethal use of firearms must be strlctly li
what is unavoidable as an immediate measure to protect Ilfe-R~CRSEPTEMBRE lRRC SEPTE2002VOL.84No847 695
/
9,Access to emergency medical services for al1those in need is also of para-
rnountimportance in the current situation. Such access must not be unduly
delayedor denied. Ambulances and medical personnel must be allowed to
moveabout unharmed and must not be prevented from discharging their
rnedicalduties. Al1 those taking part in the violence must respect and assist
themedical services, whether deployed by the armed forces, civilian organi-
zations,the Palestine Red Crescent Society, the Magen David Adom, the
ICRC, the International Federation of Red Cross and Red Crescent
Societiesor other humanitarian organizations.
10.Article1 common to the four Geneva Conventions stipulates that the
"HighContracting Parties undertake to respect and ensure respect for the
presentConvention in al1 circurnstances". This conference is to be viewed
withinthat context. The ICRC has always welcomed al1individual and joint
effortsmade by States Party to the Geneva Conventions to fulfil this obliga-
tionand ensure respect for internationalhumanitarian law. These efforts are
al1the more vital as violations of humanitarian law are far too common
aroundthe globe.
11.The means used to meet these legal and political responsibilities are nat-
urallya matter to be decided upon by States. Whatever the means chosen,
however,the ICRC wishes to emphasize that any action States may decide to
takeat international lever rnust be aimed at achievingpractical results and at
ensuringapplication of and cornpliance with intemational humanitarian
law,in the interests of the protected population.
12.Beyondal1legal considerations and in view of the currenthumanitarian
situation,the ICRC again calls upon al1 parties concemed to make every
possibleeffort to spare civilian lives and preserve a measure of humanity.
:13.Forits part, the ICRC will continue to do its utmost to assist and protect
%.l1ictims in accordance with its mandate and with the principles of neu-
imlityimpartiality and independence which govem its humanitarian work.
6"counu on the full support of the parties concerned in promoting compli-
@,e with the humanitarian rules and facilitating humanitarian activities,
pkch may also help pave the way towards the establishment of peace
$'een al1peoples and nations in the region.
$? ne steady deterioration of the humanitarian situation over the last few
*mms and, in particular, the tragic events of the past few days have high-
Ilghtedthe need to break the spiral of violence and restore respect for inter-
nationalhumanitarian law. ANNEX 12
B'Tselem (The Israeli Information Centre for Hurnan Rights in the
Occupied Territories), Landael's Settlement Policy in the
WestBank, May02 LAND GRAB
Israel's Settlement Policy
in the West Bank
May 2002
ISSN 0793-520XRcscarched and writtcn by Yehezkcl Lein
in collaboration witli Eyal Weizinan, arcliitect
Edited by Yael Stein
Professional consultation by architect Shinuel Groag
Traiislated byShaul Vardiand Zvi Shulman
Photos by Eyal Weizinan (unless otlierwise stated)
Design by Gama Design (www.Gama.co.il)
B'TseleintliaultsProf. Hubert Law-Yone forhis assistance in preparing the report, and the Center
for Jewisli Pluralism forepreseiiting B'Tseleinin obtaining iilformatioiipursuailt to the Freedom of
Ii-~formatiol ct.
B'TselemBoard of Directors and Staff
Chair,Board of Directors: Anat Biletzki
Board: Hassan 'Abadi, Rafat AbuZalern,Arieh Arnori,Henriette Dahan-Kalev, Nasser Darwish, Celso
Garbaz, A111110 K11peliuk, Peretz Kidron, Victor Lederfarb, AyeletOphir, Danny Rubinstein, Nadera
Shalhub-Kevorkian, Leoii Shelef, Cila Svirsky, Sharon Tal, Roni Talmor
Executive Director: Jessica Montell
Staff: Maysa Abuel-Haija, Musa AbuHashhash, Najib Abu Rokaya, Baha 'Alyaii,Ni~nrodAmzalak,
'AliDaragmeh, Korin Degaili, Eti Dry,Ron Dudai, Haneen 'Elias,SliirlyErari,Ofir Feuerstein, Rachel
Greeiispaliii,Iyad Hadad, Maya Johnston,YehezkelLein, Raslaii Mahagila,Nabil Mekherez, Micol
Nitza, EyalRaz, Sohad Sakalla. Roiien Shnayderman,Zvi Shulinan,YaelStein, Lior Yavne,Suha ZeydTable of Contents
Iiitroductioii
Chapter One: Policy, Processes, and Institutions: Basic Concepts
Chapter Two: Tlie Settlelileiitsin International Law
Chapter Three: Tlie Land-seizure Meclianisms
Cliapter Four: TlieAiinexation Policy and Local Goveniment
Cl-iapterFive: Beiiefits aiid Financial Incentives
Chapter Six: The Planning System
Chapter Seven: AilAnalysis of the Map of tlie WestBank
Cllapter Eight: Tlie Ari'el Settleinent -A Case Study
CoiiclusionsTable 1: Population of Settlen~eiitsiii East Jerusalein
Table2: Settleinents and Settlers in the WestBank
Table3: LocalAuthorities in the WestBank
Table4: Per-capita Income in WestBank Local Councils
Table5: Per-capitaIncome in WestBank Regioilal Co~incils
Table6: Cornparisolibetween Local Autliorities in the WestBank and in Israel
Table7: Multi-yearAverage of Municipal Income, 1990-1999
Table8: WestBank Regioiis accordiilg to OsloAccords
Table9: Area of tlie Settlements, by Region
Diagrams
Diagram 1: Settlers ii-itlie WestBank
Diagram 2: Settlements in the WestBank
Diagram 3: Building Starts of Housiiig Units in the WestBank and Gaza Strip
Diagram 4: Settlements in the WestBank, by Type
Diagram 5: Settlements in the WestBank, by Level of Priority
Diagram 6: Settlers in the WestBank, by Level of Priority
Diagram 7: Per-capita Incotne in Local Couricils
Diagram 8: Per-capita Income in Regional Councils
Diagram 9: Incremental Growtli ofAri'el: Dates of OutliiiePlanMap 1: Dispersioii of Built-upAreas
Map 2: Settlements -Divided into Regioiis
Map 3: Areas controlled by Settleineiits
Map 4: Area of Jurisdiction ofettleineiits'Regional Councils
Map 5: Divisioii of Powers pursuaiit to OsloAccords
Map 6: Existing Road Network
Map 7: Settlemeiits surrouiidiiigNablus
Map 8: Settlements in tlie Western Hills Strip
Map 9: Settlements Bloc along Road 60
Map 10: Settleineiits'Laiid Control iii South Mount HebroiiArea
Photos
Photo 1: Hinanit aiid Shaqed -municipal bouiidaries
Photo 2: Tapuah -muiiicipal boundaries
Plioto 3: Riminonim -muiiicipal bouiidaries
Photo 4: Ez Efrayim -muiiicipal boundaries
Photo 5: Pesagot, Ramallah, and al-Bira
Plioto 6: Ma'aleAdummiin -built-up area and land reserves
Photo 7: Har Homa -coiistruction stage
P11oto8: Har Adar -built-up area and expansion area
Photo 9: Alone Sliilo Fami outpost with Qaine Shoiiieron and Kafi Laqif in
the backgrouiid
Photo 10: Mizpe Keramim outpost, near Kokliav Hashahar
Photo 11 : Nili
Plloto 12: Qedar
Photo 13: TlieTuiinels Road
Photo 14: IDF soldiers during Operation Defeiisive Shield, tlieItamar settlement
iii the backgrouild
Photo 15: Ari'el -view from the soutlieast
Photo 16: Caravaiis iii tlie area east of Ari'el with Jamina'iii iii the background
Photo 17: Physical roadblock at eiltraiiceto Yasuf
Photo 18: Sewage from Ari'el flowing towardSalfit'spumping station
Photo 19: Ari'el and Salfit
Photo 20: Ari'el aiid surrounding areas
Photo 2 1: On the bridge: Road No. 447 1Under tlie bridge: the Tskaka-Salfitroad
Photo 22: Area planiied for expansioii ofAri'el
Photo 23: Houses in Ari'el -view from the settleineiit'sring road
Photo 24: Houses inAri'el -view froin the settlemeiit'sriiig roadIntroduction
In December 2001, a long article appeared in Ha'nretz under the lieadline "Five Minutes from Kfar
Saba - A Look at the Ari'el Region."' The article reviewed the real estate situation in a nuinber of
settleine~itsadjacent to tlie Trans-Sainaria Highway in the viciility of Ari'el. The article included the
information that most of tlie land on whicli these "communities"' were establislied are "state-owned
land," and that "despite the security problems and the depressed state of the real estate market, the
situation in these locales is not as bad as miglit be expected."
Theperspective fromwhich this article is written (thereal estatemarket) and tlietermiiiology it employs
largely reflect the process of the assimilation of the settlements into the State of Israel. As a result of
this process, these settlements have becorne just another region of the State of Israel, where houses
and apartments arecoiistructed and offered to the general public accordiiig to free-market principles of
supply and demand.
This deliberate and systematic process of assimilation obscures a number of fundamental trutlis about
tlie settlements. The fuiidamenta1truth is that the "communities" mentioned in tlie article are not part
of the State of Israel, but are settlements established in the West Bank - an area that, since 1967, lias
been occupied territory under a military regime and in violation of the Fourth Geiieva Conventioil. The
fundainelital tnitli is that the "state-owiied land" inentioned in the article was seized from Palestiiiian
residents by illegal and unfair proceediiigs. The fundamental truth is that the settlements have beeii a
contiiiuing source of violatioiis of the liuinan rights ofthe Palestiniaiis,among them the right tofieedom
of inovemeiit,property,improveineiitin their standardof living, and self-determination.The fuiidaineilta1
truth is that the growth of these settlements is fiieled not only by neutral forces of supply anddemaiid,
but priinarily by a sophisticated govenlinental system designed to encourage Israeli citizeiis to livein
tlie settlemeiits.Iii essence, tlie process of assimilation blurs the fact that tlie settleiiiententerprise iii the
Occupied Territories lias created a systeni of legally sanctioned separation based on discriminationtllat
lias,perhaps, no parallel aiiywlierein the world silicethe apartheid regiine in SouthAfrica.
As part of the mechanism used to obscure tliese fundamental truths, the State of Israel makes a
deteniiined effort to coiiceal information relatiiig to the settlements. 111order to prepare tliis report,
B'Tseleinwas obliged to engage in a protracted and exhaustive struggle with the Civil Administration
to obtain maps marking the municipal bouiîdaries of the settlemeiits. This information, whicli is readily
available inthe case of local authorities within Israel, was eventually partially provided almostone year
after the initial request, and only after B'Tseleinthreateiled legal action.
1.Slilomi Shcffei; "l'ivc Miiiutcsfroin Kfar Sabü -A Look at the Ari'clIkzectlE.stufeSiipl~le,3 Dcccilibci-2001.
2.Iithis rcpoi?."coiniiiiiiiity"is uscd for the Hcbrc\\.tcriri,r.i.shui:which is a gcncral tcrin blurriiigtlicfact that the scttlcincnt is inthe Occupicd
Tcrritorics. whilc "scttliuscd to trünslatctlic Hcbrcw tcrm liitimchliit, wliicliinaiiitaiiistliis distinctioii (/run.s.).The peace process betweeii Israel and the Palestiiiiaiis did not lead to the disrnaiitling of even one
settleinent, andthe settlements even grewsubstantially in area and population during this period. While
at the end of 1993 (at the time of tlie signiiig of the Declaratioii of Priiiciples) the population of the
settlemeiitsin tlieWestBank (includingsettlemeiitsin EastJerusalem) totaled some 247,000,by the end
of 2001 thisfigure had riseii to 375,000.
The agreements signed between Israel and the Palestinian Authority entailed tlie transfer of certain
powers to the PA; tliesepowers apply in dozens of disconiiected enclaves containing the inajority of
the Palestinianpopulation. Silice2000, these enclaves, referredto asAreas A and B, have accouiitedfor
approximately forty percent of the area of the WestBank. Control of the remaining areas, including the
roads providiiigtransitbetween the enclaves,as well aspoints of departure from theWestBank, remailis
witliIsrael.
This report, which is the continuation of several reports published by B'Tselein in recent year~,~
examines a number of aspects relatiiig to Israeli policy toward tlie settlements in the West Bank
and to the results of this policy in terms of human rights and international law. The report also
relates to settlements in East Jerusalem that Israel establisliedand officially annexed into Israel. Under
iiiternatioiiallaw, these areas are occupied territory whose status is tlie same as the rest of the West
Bank.
This report does not relate to the settlements in tlie Gaza Strip. Tliough similar in nlaiiy ways to their
counterparts in tlie West Bank, tlie Gaza Strip settlements differ in several respects. For example,
the legal framework in the Gaza Strip differs from that applying in the West Bank in various fields,
includinglandlaws; these diîferencesaredue to the different laws that were in effect in tlieseareasprior
to 1967.
This report comprises eiglit chapters:
Cliapter One presents a number of basic concepts on the principal plans impleiiieiitedby the Israeli
goveniments, tliebureaucratic process of establishingiiew settleinents, and the types of seitlemerits.
Cliapter Two examines the status of tlie settlements and settlers according to international law and
briefly surveys the violations of Palestinian huinan riglits resulting from the establishment of the
settlerneiits.
CliapterThree discusses tlie bureaucratic and legal apparatus used by Israel to seize control of land
in the WestBank for the establishment and expansion of settlements. Tlie cliief component of tliis
apparatus,and tliemain focus of the chapter, is the process of declariiigand registeriiig land as "state
land."
3.B'Tsclcin,.1Po1ic:/Di.tointinution: Lund E.~/\-l,riok~iill.iiiilgand Birilding in East nay 1995);Ir~lpo.s,eoe.xi.stenc.e:
HlrnlniîRighl.~in Ilchron .siil<:tehe Eclussoc.recilrhe Cn~v($the Prr~rinrch.(sInforination Shcct, Scptciiibcr 1995);lsrcieliSettlei71eiltil11hc
Occripic~dTerritorcrsoI'iolotio~iof llrininil Rights (March 1997); Dentolishing Peace: LsraellvPolicy of kfu.s.sDrlnolition (fP~Ie.sri17i«17
Holrsc~in the It'estBunk (Iiihrination Shcct, Scptcinb011the N'[10/Inilexalion: Hrrnligl7f.sI/iolutionsRerultinthero171
E,stuhIi.shiiic~o~nitd Expu17sionvf'thc Afu'ale.Id~riilminrScttleriienl (Infoiiiiaiioii Slicct. Junc 1999).Cliapter Four reviews the clianges in Israeli law that were adopted to aniiex tlie settlements into
the State of Israel by turiiing them into civilia~ienclaves within the occupied territory. Tliis chapter
also exaiiiines tlie structure of local governinent in the settlemeiits in tlie context of inunicipal
boundaries.
Chapter Five examines the economic iiicentives Israel provides to settlers and settlemeiits to
encourage Israelis to rnove to the West Bank and to encourage those already living in the region to
remain there.
Chapter Six analyzes tlieplanning mecliaiiisiiiin the WestBank applied by the Civil Administration,
wliich is responsible for issuing building permits bot11in the settlements and in Palestiiiiaii
commuiiities. Tliis inechanism plays a decisive role in the establishment and expansi011of the
settleinents, and in limitiiigthe development of Palestiiiiaiicoinmunities.
Cliapter Seven analyzes themap of the WestBank attached totliis report. This analysis examines tlie
layout of the settlements by area, iioting some of the negative ramificatioiis the settlements have oii
the human rights of the Palestinian population.
Cliapter Eight focuses in depth oii the Ari'el settlement and tlie ramifications of its establishment
on tlie adjacent Palestiiiiaii cominunities. This chapter also discusses the expected consequeilces of
Ari'el'sexpansion according tothe curreiltoutline plan. - -::$+ Ea 1* 6-jFva
'tr+s...,F3& k-r
Policy, Processes, and Institutions: Basic
Concepts
This cliapter presents a iiumber of basic coiicepts that inust be understood to continue the discussioii
of Our subject. The first part of tliis cliapter briefly reviews a iiumber of key approaches and plans
delineating the activities of Israeli govei-nmeiits with regard to the settleineilts in the West Baiik.
The second part discusses the principal institutions and processes involved iil the establishment of a
settleineiit.The last part of tliischapter presents a typology of settlements accordjng to various forins of
settleinent (kibbutz,cornmuilalsettlemeiit, urbail settlemeiit, etc.) Throughout the chapter, a number of
statistics will also be preseiited that relate to tlie settlemeiits and settlers.
A. Settlement Policy
Israeli policy toward the settlements iii tlie West Bank lias undergone various changes over the years,
reflecting tliedivergent political views of decisioiimakers, the relative weiglit of various interest groups
active iii tliis field, and developments in the iiitei~iationalarena. While these divergent approaches have
been manifested, inter alia, in changes in the scope of resources allocated to tliis issue, aiid in the
areas in wliich it was decided to establish settlements, al1Israeli governments have contributed to the
strengtheniiig, developnient and expailsioiiof the settlement enterprise.
Tlie national unity govei-nmeiitlieaded by Levi Eshkol was established shortly before the outbreak of
war in June 1967. Duriiig the inoiiths iiiimediately following the war, this goveniiiieiit did not have any
clear policy regarding Israeli settleinent in tlieWestBaiik.The initial inclination of most of the members
of tliegoveriiment was to liold the territory as a bargaiiiing cliip for future iiegotiations. Accordingly,
tliey opposed plans to establisli civilian settlemeilts in tliis area. 1-Iowever,these inclinations were
rapidly eroded, due bot11to thepressures exerted by various iiiterestgroups and as the result ofinitiatives
from witliiiithe goveniment. As early as Septeinber 1967,Kfar Ezyoii becaine the first settlement to be
established iii the WestBaiik. It was established because of the pressure of a group of settlers, some of
wliom were relatives of the resideiits of the original cominunity of Kfar Ezyon, wliicli was abandoned
and destroyed during the 1948war."
The uiiity government's policy oii "East Jenisalem" was different. Tmmediately after the war, the
governinent applied Israeli law to extensive areas to the north, east aiid south of West Jerusalein,
which were annexed to tlie Municipality of Jerusalem. The goveriimeiitbegan a rapid process to build
settleinents in tliese areas. Its goal was to prevent aiiy challenge to Israel'ssovereignty over them and to
impede initiatives leading to an Israeli withdrawal from these areas.'
4. SliloinoGazit. bols ii-aThirw Yeai:~c~f'i oli~:i:in the Territories (in 1-icbrc~r(,)Tcl-Aviv:Zcinoi-a-Bcitan,1999),p. 228.
5.As dctailiiChaptcrs Tlircc ai~dScvcii hclow.the arcas aniicxcd to Jertisalciriin 1967 cxtciidcdtir bcyond tlic city liiiiitsof tlictimc, as
dcfiiicd undci-Jordanian rulc. For thc sakc ofconvciiiciicc, tliis ai-cawill bc rcl'cri-cdto bclo\v as East .Icrusalcin.In addition, Israel also aniiexed to its territory a strip of land parallel to tlie Green Line along a few
kilometers nortli and south of the Lahun area (see tlie map attaclied to tliis report). This strip of land
had beeii known as "no inan's laiid," because iii 1948-1967 it was iiot subject to the control of either
the Israeli or theJordaiiian side. Over the years, Tsraelestablished four communities in this area (Shilat,
Lapid, Kefar Ruth aiid Maccabiin). We shall not relate to these settleineiits in this report, since uilder
iiiteriiationallaw this area is not considered occupied territory.
The Ma'arach Governments: The Alon Plan
As early as tlie end of 1967, Yigal Alon - who served at the tiine as the head of the Millisterial
Committee oii Settlements - began to prepare a strategic plan for tlie establishment of settlements
in certain parts of the West Bank. This plan was reformulated several times over the comiiig years.
Altliough ilever formally approved by the Israeli government, the plan provided the basis for the layout
of the settlements established in the West Bank on the initiative of tliegovernmeiits led by the Ma'aracli
(the precursor of the modern Labor Party) through 1977, and as the foundation for tlie "terriforial
comproinise" advocated by the Ma'arach in its platforin through the 1988 elections.
The initial objective of the Aloi1Plail was to redraw the borders of the State of Israel to include the
Jordan Valleyaiidthe Judean Desert witliin tlie territory of tlie state, whicli the plan'sproponelits argued
was iiecessaiy to eiisure state security. Witliin these areas, tlie plan advocated the establishment of a
string of Israeli settlements eiisuring a "Jewish presence" aiid constituting a preliininaiy step leadiiigto
fornial aiinexatioii. The Alon Plan also recomnended that, as far as possible, the aimexation of areas
densely populated byPalestinians should be a~oided.~
Despite tliis recolnniendatioii, tlie last draft of the plan fronl 1970 proposes to aiinex to Israel areas
that far exceed lhose required by the original approacli. These areas include: a strip along the Jordan
River witli a width of approximately twenty l<iloiiieters(extending to tlie starting point of the dense
Palestinian communities); various areas around Greater Jerusalein; the Ezyon bloc; inost of the Judean
Desert; aiid a strip of tei-ritoiy inthe soutli of the Hebron mountains. Togetlier, these areas comprise
approxiinately half the area of the West Bank. According to the Alon Plan, the remaiiiing lialf of tlie
WestBank, coiiiprising two unconnected areas to the north and south, was supposed to become part of
a Jordanian-Palestinian state.'
By the time the Likud calne to power in 1977,alniost tliirtysettlements inhabited by some4,500 Israelis
had beeii establishedin tlie West Bank (excluding East Jei~isalein)at the government's initiati~e.~Most
of these settlements were establislied iii areas earinarked for annexatioii to Israel according to the Alon
Plan, while a miiiority were established by Gusli Emuilim (see below) outside tliese areas. In addition,
by 1977 some 50,000 Israelis lived in settleineiits established iii East Jerusalei~i.~The Alon Plan was
abaiidoiied during tlieperiod of Likud-led governinents (1977-1984), wlien efforts were conceiitratediii
otlierparts of tlie WestBank. Under the national unity govenimeiitheaded by Shimon Peres andYitzliak
Shamir (1984-1988), the Alon Plan once agaiii forined part of officia1policy, leadiiig to the flow of
6. McroriBcnvciiistiand Sliloino Khayat,/ ankundG(i;uiItln.s. WestHaiikData I'rojcct (Jcrusalciii: Thc Jcriisalcin Post, 1987),
]y>.63-64.
7. Ihid.
O (;coSi"rcyAronson, Sertic~ri~c!iu~nt(.sfthe 1uVregoiirilion(sWashington: InstitutcoTPalcstinian Stiidics, 1996).p. 5.alitcr.resources to settlemeiitsestablished witliin the areas covered by the plan in the 1970s (see the Hundred
TliousaiidPlan, below).
The Influence of Gush Emunim
Amongcertainreligiousright-wing circles,Israel's victory inthe 1967warwas interpreted intheological
teins, constitutiiig tlie"beginning of Redeniption" aiid offering an opportunity "to realize the vision of
the WlioleLand ofIsrael." In 1974,tliesecircles fonned the basis for the establishment of GusliEmunim
[Bloc of the Faitliful],under the spiritual leadership of Rabbi Zvi YeliudaKook.I0The iminediate goal
of the movement was to force the Ma'arach goveniment to establish as inany settlements as possible
througlioutthe "Land of Israel." Gush Emuiiim aimed to disperse tlie settlements it establisliedover as
wide an area as possible: "Our control of a region is a fùnction not o~ilyof the size of the population
resident tliere, but also of tlie size of the area in which this population exercises its inipressioii and
influence.""
SincetlieJordan Valley,Gush Ezyon and areas ofthe Hebron mountainsregion formed part ofthe Labor
governinent's settleinentstrategy,Gush Emunimprioritized settlement activities in the central mountain
range ofthe WestBank - the area contaiiiiiigmost ofthe Palestiniaiipopulation.I2The principal inethod
adopted by the movement was to settle a given site witlio~itgovernment permission - and sometimes
contrary to its policy - in ail effort to force the governmeiit later to recognize the settlement as an
accomplislied fact. Betweeii July 1974 and December 1975,meinbers of Gush Einuiiim made seven
unsuccessful attempts to establish a settlementat various sites in the Nablus area without government
permissioil.The eightliatteiiiptled to a compromise between the activists and then Minister of Defense
ShimonPeres. The settlerswere allowed tostay at ailIDFbase called Qadum to tliewest ofNablus; two
years later,the base was officially transformed iiito the settlemeiitof Qedumim.I3
In other cases, the Gush Emunim settlers group received permission fi-omthe autliorities to establish
a settlenieiit site on false pretenses. In one instance, members of Gush Emunim secured permission to
establish a "work camp" close to the village of 'EinYabrud.Tlie "camp" later became tlie settlement
Ofra. In another case, the settlement of Shilo was established uiider the guise of an archeological
excavatio~i.'~
The clashes between GusliEinunim and the governmentcoiitinuedduring niost of the period of the first
Likud governinent headed by Meiiachem Begin, but ended shortly before tlie 1981 elections, after the
Deinocratic Movement for Change resigned fromthe government.At this point, the goveniment began
to work torealize al1the settlemeiitplans of GusliEmunim, providiiig extensive financial assistance for
its activities.I5
10.For an analysis of the idcological platforin of Gush Einuniin, scc Gidon Eran, I'ronrIoZionisr Religi-nThe Rools aiid
Culture ($Gu.sh Einzii~iin(in Hcbi-cw)(thcsis toward a D.Pattlic 1-lcbrcwUniversity of Jcrusalcin, 1987).
11.Giisli Einuniin, iLIrlanfor Seftleinei~~inJudea and Sonin Hcbrcw) (1980), p. 15.
12. For a dctailcd gcograpliiclildcscription of the WestBank. and for a dcscription of tlic Iayoutof scttlciiiciits in tlicarea. sec Chapter
Scvcn bclow.
13.David Ncwinan, Je~~ishSelilenlent in the bl'estBank: The llole qfGu(Durhain, Iiiiglaiid:Ccntrc for Middle Eastcriiand
Islainic Siiidics, 1982).pp. 4-43,
1.1.Asiinilar tactic, eiiiploycd in IO68by a groiip of scitlcrs in Hcbron hcadcd by Rabbi Lcviiigcr. Icd to the csiablishincni of the scitlcmcni
Qiryat Arba. Gazit, Foolo Elrp. p. 231.
15.h4ci.0Bciivciiisti.Lei-icoitofJ~rdeauiidSuinor-ici:Set/leriieii/srl~lniini.s/ruiionur7dSocip-: (in Hcbrcw) (.lcrusalcin:Cana. IWX),p. 155.Likud Policy: The Drobless Plan and the Sharon Plan
After the Likud came to power in 1977, Matitiyaliu Drobless, liead of the WorldZionist Organization's
SettlementDivision, prepared a compreheiisive plan for the establishment of settleineiits throughout tlie
WestBaiik.'"his plaii, which was published in 1978and ~ipdatedseveral times in the following years,
was also known as tlie Drobless Plan and coiistituted a guidiiig documeiit for government aiid WZO
policy regarding the settlements. Accordiiig to the plaii:
Tlie civilian presence of Jewish coinmuiiities is vital for the security of the state.. . There inust iiot
be the sliglitestdoubt regarding Ouriiiteiitioiito hold tlie areas of Judea aiid Samaria for ever.. .The
best and most effective way to remove any shred of doubt regarding Ourintention to hold Judea and
Sainaria forever is a rapid settlement drive in tliese areas."
The Drobless Plaii was completely in line witli the plaiis of Gush Emunim, providing the foundatioii
for close cooperation betweeii the two bodies. This cooperatioii led to the establishment of dozens of
"coinmuiiitysettlements" (seebelow), inost of wliicli weresituated oii the ceiitral mountain ridge close
to Palestiiiian population centers.
Aiiother key figure wlio made a significant contribution to proinotiiig the settlements enterprise was
tlie Minister of Agriculture iii tliefirst Likud governmeiit (1977-1981), Ariel Sharon. Sharon prepared a
plan bearing his iiamethat iilcluded a inap deliiieating areas liebelieved were vital for Israel'ssecurity,
and should therefore be aniiexed.According to Sharon'sniap, only a small number of enclaves densely
populated by Palestiiiians were not to come under Israeli sovereigiity in the future.l%ike Alon and
Drobless, Sharon recominended the establishment of settlemeiits in these areas as a means of promotiiig
aniiexatioii.While this plan was iiot officially adopted by tlie governinent, it provided the basis for the
activities of the Miiiishy of Agriculture. The ininistry's power over the establishment of settlements
resulted from itscontrol of the Israel Lands Admiiiistratioii,wliicliwas responsible for the manageiiient
of "state land" (see Cliapter Tliree) and for financing the activities of the WZO Settleinent Division (see
below).
Followiiig the preparation of this plan, tlie Miiiistiy of Agriculture and the Ministry of Construction
aiid Housing concentrated their efforts oii establishiiig settlements on the western slopes of the ceiitral
inouiitaiiiridge iiithe WestBank, nortli of Jenisalem (western Sainaria). These efforts reflected Sharon's
belief that itwas importaiitto prevent the creatioiiof a contiguous area populated by Arabs on eitherside
oftlieGreen Line, leading to the coiinection of the areaWestof Jenin andNablus, and nortliofRamallah,
to the Palestiiiiaiicommunities witliin Israel adjacent to the Green Line, suc11a Umm el-Fahm and Kafr
Qasem.I9While tliesettlements iiiitiated by the WZO in tlie central mountain ridge area were populated
rnaiiilyby members aiid supporters of Gush Einuiiim,the above-mentioiied governinent ministriesmade
great efforts to attract the general, non-ideological public to tlie settlements in westerii Samaria by
guaraiiteeing an iinproved standard of liviiig within a short distance from the urban centers on the
coastal
16.Rcgai-dingtlicrolc »l'the WorldZi«iiist Congi-cssiii initiating aiid cstablishiiigncw scitlciiicnts. sec bclow.
17. Mütitiyahii Droblcss, iRe Sel~letlreiiiin Juclco -nSli.otqg~:Polic~~ond Proyruin (in Hebrcw) (Jcrusalcin: World Zioiiist
Organization. Scpici1980) p. 3.
18. Bciivcnistiaiid Kliayat, TBnilk ond GuzoAllas, p. 65
19.C3colTreArorison,CreatiiigFncts: Isrorl, I'rile.sliniuruund the M'es/Bonk (Washington: Inslitulc for Palcstinian Studics, 1987),p. 71
20. Ibirl.,pp. 72-74.At the beginniiig of 1983, the Ministry of Agriculture and the WZO publislied a "inaster plan" for
settleinents in the West Bank througli the year 2010, including ail operative development plan for the
period 1983-1986.2'This plan was also lulown as Tlie Hundred Thousaild Plan, diie to its aspiration to
attract 80,000 newIsraeli citizens by 1986, so that the Jewish populatioii (excluding East Jerusalem)
wouldnumber 100,000.According to the plan, twenty-three newcommu~ialandrural cominunities were
to be established, as well as twenty NAHAL army settlement sites. In addition, 300-450 kilometers of
new roads were to be paved.=?W11ilethe original einphasis of the plail called for settlements iii the
central mountain ridge and on the western slopes of the ridge, the establishnient of tlie national unity
govenînleiit iii 1984meant tlîat a considerable part of the resources was actually diverted to promote
settlements in the Jordan Valley,constituting a compromise betweensupporters of tlie Drobless-Sharon
approach and expoilelits of the Alon pl ai^.'During the period of the plan, the goveniment acliieved
the objective in terms of the nuinber of iiew settlements, but failedto meet tlie populatioiiforecast; the
actual population by the end of 1986wasjust 51,000.
Settlement activitiescontiiluedat full Paceunder thenewly electedLikud government (1988-1992).The
empliasis oftlie government was on expanding existiiigsettlements. Tlie population of the settlements
increased by sixtyperceiit during this period. Teil new settlements were established, a small number
compared to previous governme~its.The tremendous scale of construction in tlie territories by this
governineilt led to an open confrontation with the United States goverilmelit, which decided to freeze
guarantees ithad promised to provide Israel as part of tlie United States assistance to help absorb the
wave of iminigrants from the Soviet Unio~i.'~
The Oslo Process and Continued Expansion
The establishment in July 1992 of a iiew goveniment headed by Yitzllak Rabin seemed to offer the
possibility of a real change in Israel's settlemeiit policy. The Labor Party l-iadfouglit the election
on a promise to "change national priorities," including a substantial rediictioii in the allocatioil of
resourcesfor the settlements.The signing of theDeclaration ofPrinciples betweeil Israel andthe PL0 iii
Septeniber 1993also indicated the goveriiment'sinteiitioiitocliaiigeits policy,although theDeclaration
did not explicitlyprohibit the establishineiîtofnew settlements. Itwas only in tlieOslo 2accords, which
were signed two years later,tliat the parties stated: "Neitlierside shall initiate or take any step that will
change the status of tlie West Bank and the Gaza Strippending the outcoine of the permaneiit status
negotiati~ns."~~
However, within a short period tiine,it became clear that tliechange in policy was insignificantaiidthat
the new govei~imentintended to continue the developmentof settlements.
The goverliment made a promise to the United States that it would iiot establis11iiew settleinents and
would halt the expansion of the existing settlements, with the exception of construction to rneet the
21. Ministi-yoi',4griciilturcaiid the Scttlcnicnt Division of the World Zionist Orgaiiizatioti, b1u.rterPlonjbr Settlernent.fi)r.I~ideaand
S<inrari. )t.i;clopinenfI'luiifir rh<!19. 3-1986 (.lcrusalcm,April 1983).
22. Ihid.. p. 9.
23. Bcii\~cnisti,l,ex.vrcoiorjJ~ideuundSurnorin. p. 152.
74. ASOIISO~, II~PIII~S7tdh<?l.s~~~rel-P~le.s~inNi(e~gnotic~lions,pl?.48-49.
25. lsracli-l'alcstinian Iiitcrim011tlic Wcst Bank and the Gaza Strip, 28 Scptciiibcr 1995(Oslo 2), Chaptcr 5,Article 31(7)."liaturalgrowth" of the local p~pulation.~This cominitment was also included inthe government'sbasic
guidelines, witli two sigiiificant exceptions tliat were remnants of tlie approacli embodied in the Alon
Plan: "No iiew settleinents will be established aiid existing settlements will iiot be expanded, with tlie
exception of those situated withiii tlie Greater Jerusalem area aiid in the Jordan Valley."
The exceptions inthe government'sguidelines effectivelybecame the iilain tool permitting the contiiiued
building of settlenieiits and growth of tlie Israeli population iii the settlements. According to the basic
guidelines, "Greater Jerusalem area" iiicluded notonly tlioseareas aiinexed in 1967 and included in the
municipal boundaries of the city, but also considerable areas beyond these limits (see the discussion
of tlie Jerusalem Metropolis in Chapter Seven). In addition, during tlie period of office of the Rabin
goveilimeiit, 9,850 iiew housing units were completed throughout the West Bank (not oiily in the
governrneiit'spriority areas). Constructioii of these uiiits had begun under the previous government,
tliough nomention is made in the governmeiit's basicguidelines.?'
Moreover, the term "natural growth" was iiever precisely defined, and the vague nature of tlie terin
has allowed Israel to continue to expand the settlements while avoiding direct confroiitation with the
United States Administration. Sirice the signing of the Declaration of Priiiciples, in 1993. al1Israeli
governments liave iiitcrpreted tliis phrase as including not only the natural growth of the existing
population (Le., birth rates), but also the growtli of the population by migration. At the same time, the
goveriiments theinselves liave strongly encouraged migration from Israel to the settleinents by offering
geiierous financial beiiefitsand incentives (see Chapter Four below).
Uiider the baiiner of "natural growth," Israel lias establislied iiewsettleinents under the guise of "new
neighborhoods" of existing settlements. To this end, tliese new settlements liave been included in the
area of jurisdiction of tlie adjacent settlement, eveii in cases of no territorial contiguity between tlie
two settlements.2%xceptions to tliis approacliincluded the settlements Modi'in Illit (Qiryat Sefer) and
Menorah, recognized as iiew settleinents in 1996and 1998,respectively.
Another inetliod employed in order to expand the settleinents was the seizure of a new location by a
group of settlers who erected a nuniber of caravans on the site (see Photos 9 aiid 10).While tliis method
was the settlers' initiative, witliout approval hom the relevant authorities, the government generally
refrained hom evicting the settlers or demolishing the buildings they erected without permits. Soine
received retroactive appro~al.'~
Overall, contrary to the expectations raised by tlie Oslo Process, the Israeli goveriiments have
implemented a policy leadiiig to the drainatic growtli of the settleineiits. Between September 1993,on
the signingofthe Declaration of Piinciples, and Septeinber2001 (the time of the outbreak of tlieal-Aqsa
intifada), the number of housing units in the settlements in the West Bank (excluding East Jerusalein)
and Gaza Striprose from20,400 to 31,400 - an increaseof approxiinately fifty-fourpercent injust seven
years. The sliarpest increase during this period was recorded in 2000, under the government headed by
- -- -.
26. Aronsoii.Sclllentei~lsrrndlhe Isrciel-Ptrle.slinianNego1iution.s.pp. 50-51.
27. Ibid.. p. 11.
28. Tlic Statc Coinptrollcr offcrcd adctailcd criticisin of certain aspects of this incthod in the spccific case of tlic cstablishtnciit of thc Tel
Zioii scttlcincnt, in 1998, undcr tlic guise «fa "ticighborliood" of tllc scttlciiicnlKocliav Ya'akov.Sec Statc Coinptrollcr, AiinrwlReporl 5IB
(in Hcbrcw) (.lcrusa, pril 7001). pp. 398-405.
29. FOI. list «f'»utpsrcctcd siilcc tlic bcginnilig ol'tliccumcnt intifrida,scc the Pcacc Now Wcbsilc: www.]~cacciiow.«rg.iI.Ehud Barak, when the coilstruction of alinost 4,800 new housing units was cominenced. At the end of
1993,tlie population of the West Bank settlemeiits (excluding East Jerusalem) totaled 100,500. Bythe
end of 2000, this figure iiicreased to 191,600, representing a growth rate of some ilinety percent. By
contrast, the growth rate in the settlements in East Jerusalem was much slower: tlie population of these
settlemeritstotaled 146,800in 1993and 176,900iii2001 - an iilcreaseofjust twenty percent.
Table 1
Population of Settlements in East Jerusalem (in thousands)
- -- -- - -- - - - -
Year Number of Residents
---- - - ---- -- - ------- " - - - -- -*-
1992 141
- - 1993 - - --146-- - -
1994 --- 152.7 -- -
--995 155- --
1996 160.4
* This is an estimation based on percentage of growth of population throughout Jerusalein (Central Statistics
Bureau).
Source: Jerusalem Institute for Israel Studies. On YozirStati~tics,Jer~i.vuletn(various years). Table 2
Settlements and Settlers in the WestBank*
- - - - -
Year r of Settlements*" Popuiation (in thousands)
- --- . - -- - - -- -- - - -- -
1967 __ - - _-- _ .. . -- .- -- - --- - -- -nkno-n - - -
1968 - - 3 --- - - -- -- - -- -Unknown
1969 8 Unknown
1970 - 1O - - Unknown
191 12 Ü-- own
Uiiknown
1972 -- - - -4 -- - -
1973 14 Unkiiowil
1974 14 Uiiknowii
1975 19 Uniuiowil
1976- _ _ *- *---- - -- - -- -- ----.- - - - - --- - - --
4.4
1977 - 31 - --- - -- -- - --
7.4
1978 39 - -- - - - -- - - - - -
1979
-43 ----- - -
1980 53 -- 12.5
198 1 - 68 - - -.- 16.2
1982 73 - 21
1983 76 - 22.8
1984 102 35.3
1985 - -.
1986
1987 11 O - .- --- - . - 57.9
1988 110 63.6
1989 69.8 -
1990 118 - -- - 78.6
1991 119-- - 90.3
1992 120 - 100.5
1993 110.9
1994 120 122.7
1995 _ - a - -120 - 127.9
1996 --- -- 121 - 14.-5 -- --
1997 122 154.4
1998 123 166.1
1999 123
2000
2001 *** 123 198
" Not including East Jenisaleni.
'L*Thesc figures relatc io the number of settlements recognized by the Ministry of the Interior.
"** As of 31Septembcr 2001 (provisional data).
Source: Central Bureau ofStatistics Isi-rrelSfczfi.stica1Yearhook(various years), not including a "number of settlements" for
the ycars 1967-1981,based on Benvcnisti and Khayat, The IYeevBt onk und Gazn At1ci.. p. 138-140. Diagram 1
Settlers in the West Bank* (in thousands)
*Not includiiig East Jenisalem.
Diagram 2
Settlements in the West Bank*
*Not including East Jcmsale~i~. Diagram 3
Building Starts of Housing Unitsin the WestBank* andGaza Strip
* Not iiicludingEastJerusalem.
B. Establishing a Settlement: The Bureaucratic Procedure
The establisliment of a iiew settlemeiit involves nuinerous stages and eiltails the involvement of a
variety of iiistitutions aiid bodies. Tlie first forinal step is to secure tlie authorization of the Joint
Settleiiieilt Committee of tlie Israeli Govenlment and the World Zionist Organization (liereafter: the
Millisterial Coininittee for Settlement), which was establislied in 1970 and is empowered to decide
on the establishment of a iiew settlemeiit. Tlie Miiiisterial Cominittee for Settleiilent is composed of
an equal number of ministers fiom tlie relevaiit govemment ministries aiid members of the WZO
Exec~tive.'~
While the mandate of this committee includcd the establishineiit of cominunities withiii the State of
Israel, its activities since its establishment centered mainly on tlie establishment of settleinents in
tlieteiritories occupied in 1967 (the West Baiik, Gaza Strip, Golaii Heights and northenl Sinai). In
addition to graiitingfonnal approval, tlie coiiimittee isresponsible for decidiiig on the locatioii of the
settlement aiid tlie form of settlemeilt (see below), as well as its inteilded size in geographical terins
aiid in populatioii, the officia1body to be responsible for establishment, and so on. In several cases, tlie
coiiîmittee lias provided retroactive approval after tlie establisliment of a settlement by Gush Emuniin.
IiiAugust 1996, given the political sensitivity of this issue inthe coi~textof U.S. - Israel relations, tlie
goveniineiit determiiied tliatany decisioii by the Miiiisterial Coinmittee for Settleinent relatiiig to the
establishment of a ilew settlement in the territories would be brouglitto the goveriiment for discussioii
and approval.-"
... . ... ...
30.Avshaloin Iiol<acliS~,//Itnrenrirrlsrutl (Jcr~isalciu:The JcwisliAgcncy foi.lsracl and thc WorldZionist Oiganizaiion, 1978),
p. 61.
31.Statc Coin~~irollcr.Rleport 518. p. 399.The role of tlie World Zioiiist Orgaiiizatioiias part of tliis governinental inechaiiisni deserves fi~rtlier
explanatioii because tlie WZO is a non-govenimental body, representing not the citizens of Israel
but world Jewry. One of Israel's traditional methods to direct iiatioilal resources exclusively to the
state's Jewish population, without this automatically being defined as discrimination, is delegating
responsibilities to the Jewish Agency, whicliis iiot a govemmental body. For example, tlie Settlement
Departineiit of the Jewish Agency was givenresponsibility for the establishment of iiew coinmuiiities
that were iiltended for Jews oiily. In tlie case of the establisliment of settlements in the Occupied
Territories, however,the Jewish Agency eiicountered problems: it wasuiiable to secure tax exemption
in the Uiiited States for donatioiisraised in the Uiiited States for this purpose, because the settlemeilts
were said to oppose U.S. poli~y.~A ~ccordingly, in 1971the SettlementDivision was establishedwithin
tlie World Zionist Organization; tliis body performed the functioil of the Jewish Agency's Settlement
Department iii al1matters relatiiig tothe establishment of settlements inthe Occupied Territories.
The fundingoftlie Settlemeiit Division comesfrointhe statebudget, tliroughtheMiiiistryofAgriculture.
Tlirougli 1992,however,a sigiliiicantportion of its operations were executed by the staff aiidapparatus
of the Jewish Agency Settlement Department, from the budget of tlie Settlement Di~ision.~'Since the
beginiiing of 1993, the SettlementDivision has operated separately from the SettlemeiitDepart~neiit.'~
Tlie two principal bodies involved iii establisliing the pliysical and economic infrastiucture of the
settlements are tlie Ministry of Coiistruction and Housing and the Settlement Division of the World
Zionist Orgailization.The decisioii as to wliich of tliese two bodies willbe respoiisible for aiiy given
settleiiieiitis made by tlie committee on ailad hoc basis; the maiilcoiisideratioiisare the expected Pace
of iriiplemeiitation,the availabilityof budgets andthe plaiined typeof ~ettlenieilt.'~
Tlie first step tobe talceiiby the body selected bythe MillisterialCominittee for Settlemeiit toimpleineiit
tliescttleinentis to receive "permission"fromthe Custodian for GoverninentalandAbandoned Property
in Judea and Samariato plan and build oiithe specificlaiidon wliiclithe settlement is to be e~tablislied.'~
The vast majority of settlements are established on land seized by Israel by various means; the
managellient of these lands rests witli the Custodian. In orgaiiizationalterins, the Custodian fuiictioiis
as ail arm of the Civil Admiiiistratioii, tliough professionally lie is accountable to the Israel Lands
Administration." Since 1996,any newpei-rnissioiigranted by the Custodianfor GoveriimeiitalProperty
requisesthe approval of tlieMiiiister of Defen~e.~~
After a permissioii contract is signed with the Custodian, the Ministry of Coiistniction and Housing
or the Settlement Divisionis eiltitled to sign contracts with any coopcrative association (see below) or
witli a particular constiuctioii compaiiy,wliiclithen receives the status of an "autliorized body."At the
same tiilîc, the Ministry of Construction or Housiiig or the Settlemeiit Divisionis expected to work to
secureapproval for ailoutliiieplan forthe settlenieiitfromtlieSupreniePlanning Committee ofthe Civil
32. Bcrivciiisti,Lexiron ofJuden ai~dSamariu,p. 50.
33. Rokacli.RuralSettleineiitin I.sruel,p. 71.
34. l'or details of this issue. sçc Statc Coiiiptrollci: Repoi?oiiAirditRegnrdi7pGoveriiinentul,4ssistoncej'orthe Deilelopn~eriotj'tlieNeio
Srttlenienl in the.h~deo,Sor. ozcioild ColonArens (in Hcbrcw) (Jcrusalcin, May 1999).
35. Meir Hariioy,"I'socciirlic Planiiiiigof Settlcrnçnt in Judea. Samana and the Gaza Strip" (iii Hcbrcw). in Jilden ondSoninriu Stuclies.
Protocol of tlic Second Coiifcrciicc, 1992. p.369.
36. An cxccption to this rulc is \vlicnlaiid was purchascd privatcly by Isracli civilians. For discussioii ofthe inctliods used to sci7c coiitsolof
land. and of ihc oliicc of the (lisiodiaii for (;o\,criiiiicntal Pi-opci-iys,cc CliaptcrThrcc bclow.
37. Statc C«iiiptr«llcr.Annuul Rqmrl SIR, p. 399.
38. Ihici.Adininistration, and to issue building permits on the basis of tliis plan.'%fter al1contracts have been
sigiiedand al1permits received, the autliorized body is entitled tobuild.
Tlie SettleiiieiitDivision has specialized in establisliing small settlements in the form of a "commuiiity
settleinent" or one of tlie inodels for cooperative settlements, although it lias also establislied regular
rural conimuiiities (see below). As settlers begin to move into the settlement, routine management is
transferred to a cooperative associatioii responsible, among other things, for accepting (or rejecting)
new meinbers iii the settlemei~t.~~ In certain cases, the involvement of the cooperative association
begins during tlie construction phase, and the associatioiireaches agreements directly with a contractor
to execute the development and coiistruction. The cooperative associatioiis generally operate under
the auspices of one of tlie "settling movements" - Ainana, the settlement wiiig of Gusli Emunim
(iiuinerically the inost important movement), the Agricultural Union, Betar, the Uiiioii of Moshavim of
Po'aleiAgudat Yisrael, the Union of Moshavim of Hapo'elHamizrachi, etc.4'
The Ministry of Construction aiid Housing processes tlie planning aiid development of the settlements
through two units within the ministry: the Rural Coiistruction Authority and tlie urban construction
departments in each of the miiiistry's districts. The Rural Constructioii Autliority was established in
1968. It is usually cliarged witli responsibility for commuiiities defined as "non-urbaii," both inside
Israel and in tlie territories occupied iii 1967.42Tlie Miiiistiy of Coiisti-uctioiiand Housing's urbaii
coiistructiondepartments process tlie larger settlements, wbiclihave generally been granted independeiit
municipal status (see Chapter Four). Unlike the settlements established by the Settlemeiit Division, the
inaiiagement of settlements establislied by the Ministry of Construction and Housiiig is not transferred
to a specific "settlingmovement," but rests witli an establisliing team uiider the auspices of the Ministry
ofConstruction and Housing pending the organizatioiiof a local committee. Houses in tliesesettlemeiits
are ostensibly sold on the free market to any buyer, tlioiighin fact tliey are sold exclusively to Je~s.~~
Although thecoinplex process described above is required in accordance with governinental decisions
aiid military legislation, iii maiiy cases the authorities skip over one or ailotlier of tlie stages, or acts
retroactively to secure the autliorizatio~isand sign tlie appropriate con tract^.^^The inost prominent
examples of this approach are the outposts established iii recent years throughout tlie West Bank,
where none of tliestages described above was iiiiplemented. Ili some cases, the Israeli autliorities have
gradually beguii to nieet the relevant requirements retroactively and in stages.
39. Fordiscussion of the physical planning apparatus, sce Chaptcr Six bclow.
40.Hainoy,Jucleurindsaniario Sfudies, pp. 370-371.
41. Forthc organizational aflïliatioii of cach scttlemcnt, sec Ccntral Bureauof Statistics, List qfLocosindCodesheii Popi11ulion.c
(vario~isycars).
42. For discussion of tlicfunctions of the Aiithority.and criticism oii tlicnccd for it (bascd on grniinds ofcficiency). scc Statc Comptrollcr.
.Iiiniiol Repoi-147 (in Hcbrcw) (Jcrusalciii. April 1997).pp. 166-173.
43. Hariioy.rdcoond SunicrriuS1udie.s.p. 371
44. For cxaiiiplcs of'thisplicnoiiiciion,sec thç reports of the Statc Coiiiptrollcr(al1in Hcbrcw):Annirol R<pol.t37 (Jcrusalcin, 1987).p. 1205;
41~ntiolReport 41 (Jcrusalcin, April 1993),pp. 911-91K1epori 5/13(Jcrusalcin,April 2001), pp. 398-405.C. Types of Settlements
The settlementsestablished iii the West Bank Varyin several respects, oiie beiiigtheir social structure,
or "type of settlement" - regular urban and rural settlements, cominunity settlements and cooperative
settlemeilts.
Cooperotiilesettlen~entsare subdivided into tliree clear models - kibbutz, moshav and cooperative
moshav - that Varyin terms of the level of equality and exteiitof cooperatioil in ownersliip of property,
in geiieral, andof means of production, in particular.However, these distinctions have become blurred
since tlie 1990s, due to the econoinic crisis affectiiig the kibbutz and moshav movemeiits and due to
chaiiges in the prevailiilg values of Israeli society.These forms of settlement are the classic inodels
cllerished by the Labor movement, and accordiiigly most of tlie kibbutzim andmosliavim in the West
Bank were founded during the 1970sunder the Ma'arachgovernments and situated in areas within the
Aloii Plan. The common feahire of al1three types of settlement, at least during the early phases, is
their agricultural character,althougli siilcethe 1980sinaily of tliese settlements have branched out into
industry and toiirisin, while soine of their meinbers have begun to work as salaried employees in the
adjacent urban centers. There are currently nine kibbutziin, thirteeil mosl-iavimand nine cooperative
inoshavim iiithe WestBank.45
Diagram 4
Settlementsin the WestBank, by Type
Urban
Cooperative
18% 23%
Rural .--_-- -- - --IV ----A--- -..
Unlike cooperative settlements, commuizity settlen7ent.sbegan as a form of settleineilt unique to the
Occupied Territories,and as ail initiative of GushEinuiiiinand its settlemeiitwiilg(Amar~a).~qlielegal
frainework is a cooperative associatioil registered with the Registrar of Associations, inailaged by its
general meeting and usually coinprising some 100-200 families. Liketlie kibbutz and the cooperative
inoshav, the community settleinent absorbs new ineinbers by a clearly defined process at tlie end of
which the general meeting decides whether to accept the candidates. Most of the members of the
comrnunity settlemeilts are middle-class settlers employed inwhite-collar positioiis in iiearby cities
45. Thc niiinbcr of scitlcincnts in cacli caicgoi-yis bascd on ihc definition of the "iypc of scttlcincnt" adoptcd by the Cciitral Boi-eauof
St;itistiss.
46. Ai a later stage, coininiiiiiiyscttlcincnts also bcgan to bc cstablishcd within Israel, particulerly iii the (;alilec.withiiî Israel." Sixty-six settleinents tliroughout the West Bank, particularly iii the Mountain Strip and
the Jerusalem Metropolis, are defilied as cominunity settleineiîts.
The reiîîaiiling settleinents are regular ut-hanor rural seitlemetzts inanaged by local coinmittees or
couiicils elected by the residents. Tliese settleinents do not carry out any special procedures for
membership or any cooperative financial franieworks. However, the smaller the settlement the greater
the homogeneity ainoiig its meinbers (in terms of religious/secular identity, economic status, origin,
etc.) The exceptions to this rule are the ultra-Orthodox settlements of Betar Illit (15,800 sesidents)
and Modi'inIllit (16,400 residents); though ainong the largest of al1tlie settlements, these are almost
completely l~omogeiîousin demographic teims. The Central Bureau of Statistics defines a settleinent
as "urban" if its population is 2,000 or more, while rural settlements are tlîose with fewer than 2,000
iiîhabitants. There are cui-rentlytwelve settlements deiined as rural and thirieen defined as usbail;to the
latter figure, one sliould add twelve settlements established iiî East Jeiusalenî that operate under the
auspices ofthe Municipality of Jerusalem.
47. For inorc dctüilcddisciissioiioii tlic characteristics of this forin of scttlcinciitaiid the pi-occsscsthat Icd to itscrcation, sec David Ncwiiiaii.
The Rolco/'Gu.sEii7uniaixi ihYishllKehil~rti,P1i.D.dissçrtatioii, llnivcrsily of Durhaiii, 1981.Cliaptcr 5.\.--* Hiiianit (toa) and Shaaed (bottom): inunicipal boundaïies
"
!: c-:O '2 Tanuali: inuiliciual boundariessba 3 Rimmonim: municipal boundariest: ;Ic> E Pesagot (011the riglit),Ramallah aiid al-Bira (011tlie left)PFasPo 7 Har Homa: coilstruction stage
E'ltobr. !HarAdar: built-UDarea aiid ex~ailsioriareatb 5 Alone ShiloFarm (bottom) outpost with Qanie Shomeron and Kafr Laqif inthe backgroundshot O 3O Mizpe Keramimoutpost, nearKoMiavHashaharEksora -3 The Tuiinels Road
PEzofo 13 IDF soldiers during Operation Defensive Sliield,the Itamar seilleinent in the backgroundTypes of Settlements: Planning Structure
Cooperative Settlement
Most of the settlements in the Jordan Valley are similar iii foim to the cooperative settlements witliin
Israel.Unlike the other kinds ofsettleinents, the plaiiniiigof cooperative settlements is affectedpriinarily
by itssocial orgaiîization and lessby topography or the restrictions associated with land owiiership(state
laiid,coiitiguity).The geometric form of the settlement reflectsan egalitarian division of the laiidamong
the members of the settleinent (moslîav), in which each plot lies adjacent to the owner's house. Peza'el
was initially divided into three sections built around the social and administrative center of the moshav.
At a later stage, the mosliav constructed a new residential area iiitended for the next generation (the
clîildreiiand tlieir fainilies) of settlers. imin
:il.
establislied in 1984,
h 1.900residents
Community Settlement
Most of the cominunity settlements were established on mountainous terrain and their shape was
priinarily determined by topographical constraints. A typical layout of such settleinent is concentric
circles along the contour line arouridthe perimeter of the suminit. The houses are inostly single-family
Iioinesof one or two stories witli tiled roofs, constructed perpeiidicular to the contour lines and with a
view of the landscape.The lots allocated to eacliliouse are identical- approximately half a duiiain [Il8
ofanacre].The social and administrativecenter of the settlement is usually located in the inner circle, at
the highest point.The settlement Eli, which lieson RoadNo. 60halfway between Ramallah and Nablus,
is a typical community settleinent. Ttspreads out overtwo adjacentmountain peaks.Urban Settlement
The urban settlements are located mostly in the Jerusalem Metropolis or adjacent to it (most of
thein within the Jerusalem Municipality). However,urban settlements are also found elsewhere in tlle
West Bank. Tliese settlemeilts were planiled to create rapid denlographic change iii areas intended for
aimexation into Israel, or as a large regional service center for clusters of smaller settlements. The
settlements include joint-terrace l~ousingor cooperative multi-story buildings.As a result, the housing
density is high in comparison witli more rural settlemeiits.Tlie form of tlle urbaii settlemeiitswas also
i~lfluencedby topograpliyand the constraints of laiidownership.The wiiidingshape of the Giv'at Ze'ev
settleineiit, located nortliwestof Jerusalem, illustrates theeffect of these constraints. Rural Settlement
couiicil, The rural settlement is typical in the
established in
1989,900 Western Hills Strip, and generally
residents fuiictions as a suburb of Tel-Aviv.Most
of these expanded rapidly as a result of
pressures of the real-estate market,and as
a result lost the concentric, closed shape
of tlieir establislinient. The form of
tlieir expansion was influenced by a
number of factors, among them the
relatively moderate typography, the
availability of land for purchase by
private entrepreneurs, liigh demaiid by
the Israeli public, and intensive farming
by localPalestiniam in areas surrouiidirig
these settlements. The houses in rural
settlementsgenerally havetiled roofs and
an adjoining parce1 of land. The sizes
of tlie lots are not standard and reflect a
speculative private-market attitude. The
settlement Zufin, northeast of Qalqiliya,
was built eritirely by private developers.
Withinthe built-up area of the settlement
lietwo Palestinian enclavesunderprivate
ownership. &*
l$v@ja
The Settlements in International Law
The settlenieiits established tl~rouglioutthe West Bank violate various provisions of intemational law
tliatare binding oiiIsrael. Iiiternational humanitarian law prohibits tlie establishment of the settlements.
Breach of this prohibition leads to the infringeineiit of iiumerous liuman rights of Palestinians tliat are
set forth in international liuman rights law. This cliapter will describe tliese principles of international
law and then will discuss the prohibition on Palestinian attacks against settlers.
A. International Humanitarian Law
Jiîternatioiialhumanitariail law sets forth tlierules applying to states during times of war and occupation.
The settlements in tlie Occupied Territories breach two primary instruments of this braiich of law: the
Hague Convention on the Laws and Customs of War on Land, and its attached Regulations, of 1907
(liereafter: the Hague Regulations), and the Fourth Geneva CoiiveiitioiiRelative to Civilian Persons in
Time of War,of 1949(hereafter: the Fourth Geneva Convention).
Israel'sofficia1position is thatnternational humaiiitarian law is not fully bindiiig on its actions in the
Occupied Territories.Its positioii was established in 1971 by then Attorney General Meir Shamgar.j8
Accordiiig to Shamgar, humanitarian law does not apply to the West Bank and the Gaza Strip because
tlieir aiinexation by Jordan and Egypt iieverreceived international recognition. Thus, the land occupied
was not "the territory of a 1-IighContractiiig Party," a requirement for application of the Geneva
Convention.Therefore, lsrael arped, it was not obliged to comply with theFourtli Geneva Convention.
However, Israel uiidertook to comply witli what it referred to as tlie "humaiiitarian provisions" of tlie
FourtliGeneva Convention, although it iiever specifiedwliat constituted the convention's "humanitarian
provisioi~s."~"tis interesting to note that, unlike Sliamgar'soriginal position, Israeli officials generally
refrainfrom questioniiig the application of the Hague Regulations to the Occupied Territories, althougli
the identicalproblem of application exist~.~~
Israel's positionhas iiever gained aiiy support in tlie internatioiial areiia aiid eveii is rejected by lsraelis
10 a significaiit degree. The Interaatioiial Red Cross, the UN, and the vast niajority of states and
international law experts have often stated tliatthe Fourth Geneva Convention is bindiiig on Israel in its
activity in the Occupied Ten-itories.
Israel'sSupreme Court has ruled that application of the laws of occupation depeiidson effectivemilitary
coiitrolfroni outside the borders of the state, and not oiiprior sovereigiity over the territory bya specific
state." This test ispreferable to the "sovereigiity test"because in inany cases, "borderdisputes are legal
38. IvlcirShaiiigar."TlicObscrvaiiceof International Law in the AdIIsrael )i.ml>ook»jllirmuii Rights(1971)
262. csp. pp.262-266.
49. Yaliauerul., /.si-ne/.rhrnd the Ruleoflrrii, (Tel-A\,iv, 1993).p. 22.
50. Eyal Zûiuir and Eyal Bcnvcnisti, "le7r~deu, urnui. e GrizuSrl.ip.nndEtritJeiiii Hebi-cw)(Jerusalcin:
Jcrusülciii lnstitutc of lsracl Stiidics, 1993),p. 62.
51.HC.1755i87..1:Co11711iuncqffc1rDFForc.e~i~z/hc bVesfDin42(2) 4.idisputes over the status of tlie occupied territory. In tliis situatioii,subordi~iatiiigthe laws of belligerent
seizure to a legal testwould neutralize their application," in tliat it would be interpreted as a waiverof
rights in theoccupied territ~ry.~~
Fourth Geneva Convention
Article 49 of the Fourth Geneva Convention explicitly states tliat, "The Occupying Power shall not
deport or trailsferparts of its own civilian population into the territory it occupies." The inost accepted
iilterpretationof tliisconvention is tlie coinmentaiy prepared by tlie International Red Cross.Accordirig
to the commentary on tliissection, "Itis intended to prevent a practice adoptedduriiigthe SecondWorld
War by certain Powers, wliicli transferred portions of their own population to occupied territory for
political and racial reasons, or in order, as tlieyclaimed, to coloiiize those territ~ries."~~
Israel rejects the coiiteiitionthat tlie settlements in the West Bank are prohibited by Article 49. In the
words ofthe Israeli Miiiistry of Foreign Affairs:
The provisions of the Geneva Convention regardiilg forced population transfer to occupied
sovereigiiterritory cannot be viewed as prohibiting the voluntary return of individuals tothe towiis
and villages from wliiclitliey,or their ancestors, liadbeen ousted.. ..
It sliould be emphasized that the movement of individuals to the territory is eiitirely voluntary,
while the settlements themselves are not iiiteiidedto displace Arab inhabitants, iior do tliey do so in
practice.'"
The Ministry'sconiments contain several legal aiid factual errors and distortions.
Firstly,according to the Fourth Geneva Convention,the absence ofthe eleinent of force inthe transfer of
Israelis iiito the occupied territory does not legitimize the transfer.Unlike tlie prohibition on deporting
local residents from the occupied territory, which is found at the beginiiing of Article 49 and forbids
the "forcible transfer" of protected persons, the end of the article states that tlie occupying state "shall
not deport or fr-ansferparts of its own civilian population iiitothe territory it occupies" (our einphasis).
The word "forcible" is absent froin tliis latter prohibitioii. The prohibition on transferriiig a civilian
population from theoccupyiiig state into tlie occupied tenitory is thus broader, and also iiicludes
non-forcible trai~sfers.~~
Secondly,the contention that thetransfer of settlers into the occupied territory wasnot intendedto expel
localresideiitsand that such expulsion did not in practice take place does not legitiinize the settlemeiits.
The objective of the last clause ofArticle 49 is to protect the local residents against anotherpopulatioii
settling on their land, witli al1the liarm that is derived from such settlement - extraction of natural
resources,liarmto econoinic development, restrictionofurban developinent, and the like - and not only
to protect tliem frornexpulsion.
52. Zaiiiirand Bcnvcnisti. "Jcwish Lands," p. 63.
53. Jcün S. Pictet (cd.), Coinrneniur:v:hui-ih Cenevu Coiii~eiztiunRelative ofCiviliail Pe~so17.ivn Zinc q/'C.I,h(rGcncva:
IiiLc~natiol oiiiniiticc ol'tlic Red Cross, 195S),p. 283.
54. lsracl Miiiistryof Foreign Affairs, /si-aeIindIi7iei-nritionul1, ay 2001, www.isracl-~nfa.gov.il.
55. B'Tsclcili.lsrueli S(ertnlhe OccrrpiedErriloriw as a ViolalionofHuiilun Righis: Le& und COncepiurilA.si~ec/.(sMarcli 1997),
p. 18.Tliirdly, the term "voliintary transfer" is deceiving. Even if tlie transfer is not forced or does iiot
constitute deportation, the willingiiess of tlie civilians to move to the Occupied Territories could not
have beeii implemeiited witliout the state's inassive intervention in establishing and expanding the
settlements. As this report shows, a nurnber of state autliorities initiated, approved, and seized land,
aiid plaiiiied and financed the vast majority of tlie settlemeiits. Although in soine cases the initial
initiative was made by entities umelated to tlie state, suc11as Gush Emuiiim, and faced governinental
opposition,the governmentultimately approved the settlemeiitretroactively and provided orgaiiizatioiial
aiid financial support. Furtliermore, as will be shown in Chapter Five, tlie governinent lias always
offered diverse financial incentives to encourage Israelis to move to the Occupied Territories.
Fourthly,the historic or religious ties of the Jewish people to the WestBank, mentioned in the Miiiistry
of Foreign Affairs document, caiinot legitiinize a flagrant breach of Israel's duties under international
liuinaiiitarian law. Tlie vast majority of the settlements was iiot intended as a "return to towiis and
villages" (in tlie Miilistry'slaiiguage) or even as a retuni to sites populated by Jews prior to 1948,but
wereeiitirelynew settleinenls. Tliis "return" wasiiot doneby weaving settlers into the existiiig patternof
lifein tliearea. Ratlier,it was doiieby creating a separate and discriminatory (physical and legal) systeni
between the settlers and the Palestinians.
It should be noted that the Jews who fled or were expelled from certain places iii tlie WestBank duriiig
the 1948 war, and who lost their property as a result, niay, in the context of a peace arrangement or
aiiy otlier arrangement, demand restitution of tlieir property or conipensation. However, tliis right is
completely unrelated to Israel's settleinentpolicy.
Hague Regulations
A fuiidamenta1principle of humanitarian law, and of the Hague Regulatioiis in particular, is the
temporary nature of inilitary occupation. It is tlie teinporary nature of occupation that dictates the
limitations on tlie occupier iii creating permanent facts in the occupied territ~ry.~~
Tlie Supreine Court lield that, because tlie occupying state is not tlie sovereign in tlie territory under
occupation and its administration tliere is temporary, it maytake into accouiit oiily two factors: security
needs and thewelfare of the local pop~lation.~'In tliewords of Justice Aliaron Barak:
TheHague Regulations revolve abouttwo main pivots: one - ensuring the legitimate security interest
of tlioseholding the land by belligerent occupation; and the otlier - ensuring the needs of the civiliaii
population in the territoiy subject tobelligerent population.. .the military commaiider may not weigh
natioiial, economic, or social iiiterests of his country insofar as they have no ramificatioiis onhis
security interest inthe area, or ontlieinterest of the local populatioii.Even inilitary needs are Iiis[i.e.,
the military coinmander's] needsand not ilatioiialsecurity needs in tlieir broad sen~e.~"
Indeed, it is hardto imagine a more profouiidor more permanent change than tui-ningan open landscape
(agricultural laiid,graziiig land, or virgiiihills) into a populated civilian coiiimuiiity.The permanence of
56. \'or-1iiistciii.1,vfWni.(in Hcbrcw) (Tcl-Avix,:Scli«cl<cnand Tcl-Aviv University, 1983).pp. 209-220.
57. HCS39382. Jurnri??u/Iskuil ol-hlui~lim«i~ul-hful~~Id~rtl0u1/-,Conliiior7dero.f IDF Fo;oi.c:eP.cis.kei Diil 37(4)785.
58. lhid., p. 794.such change results iiot oiily from the eiiormous investrnent in buildings, infrastnichire, and roads, but
also from tlieties of the lives of entire families to a particular place.
To sidestep the prohibitions mentioned above, Israel argued that the settlements were iiot permanent
changes in the occupied tesritory. Even the Supreme Court lias sanctioiied this claiin. For example, in
a decisioii regarding the requisition of privately-owned laiid to establisli the Bet El settlement, Justice
Miriain Ben-Porat noted tliat tlietenn "pemaiient commuriity"is a "purely relative concept."59Shemade
this comment although tlie building of permanent civilian coinmuiiities and civilian neighborhoods
is one of tlie niost obvious exainples of permanent change. This interpretation of the proliibition on
creating permanent facts reiiders meaningless the relevant provisions of internatioiial law.
Because it is clear tliat tlie settlemeiits were iiot intended to benefit the Palestinians, Israel's main
justification prior to 1979for the expropriation of privately-owned land was tliat it was intended toineet
"pressing security iieeds."
Tliere has been constant debate in the ariny as to wlietlier thesettlements contribute to Israel's security.
In any event, it isclear that eveiiif some military benefit arose from certain settlements, meeting security
needs was not the reason for the establisliment of the vast majority of them. As shown iii the previous
cliapter,Israel'ssettleinent policy was formed on the basis ofpolitical, strategic, and ideological reasons
coliipletely unrelated to security iieeds withiii the narsow meaniiig of the tenn. According to Major
General (ses.) Shlomo Gazit, wlio was the first coordinator of goverilnient operations in the Occupied
Tesritories:
It was clear that tlie Israeli settlements in tlie territories, aiid especially in tlie densely-populated
areas,have far-reachingpolitical consequences. Tliese settlemeiitsare intended to establish new facts
to affect thefuture political solution. It was clear that establishment of tlieIsraeli civilian settlenients
is a kind of statement of policy, whose weiglit is not mucli less than the Knesset's decision in 1967
to annex East Jerusalem: tliis settlement was establislied on land froin wliicli Israel does not intend
to witl~draw.~~
111this context, it should be noted tliatone of the fuiictioiisof the IDF'sNAHAL brigades is to establish
iiiilitary settleinent posts. Even though these posts may exist for iiiany years and the soldiers based
tliere are not involved in military actions, tliey are not permanent encampments. The soldiers remaiil
there oiilyduring their anny service and do not establish their home on the site.This kind of settlement
does not violate international law." However, most of tliese NAHAL encaiiipments were iii practice a
preliininary stage iii tlie establishment of permanent civilian settlements oii the sites.
Ili establishiiig settlemeiits since 1979 (the Elon More11case), Israel has not used land that was
expropriated on groiinds of security iieeds. Rather, it lias used land defined as state land (see Chapter
Tliree). Even if these lands iiideed belonged to the govemment of Jordan - wliicli is doubtful in inaiiy
instances - tlieiruse for settlements violates the Hague Regulations.
Article 55of the Hague Regulations Statesthe rules relating to thepesmitted use of government property
iinder tlie control of the occupier:
- -.-. -~
59. HCJ 258179,.4j:i;uhe/iil./inister.ofUcfense ercrl..Pi.rkeiDin 33(2) 113(hcrcaftcr: Bel El).
60.Gazit.fiolv ioiTi.r~pp,. 217.
hl. Dinstciil.uiof lt'u'olp.,. 226. Tlie occupyiiig State shall be regarded only as adininistrator and usufnictuary of public buildiilgs,
real estate, forests, and agricultural estates belonging to the hostile State, and situated in tlieoccupied
country. It inust safeguard the capital of tliese properties and admiiiisterthein in accordailce with the
rules of usufnict.
The terins "admiiiistrator" and "usufnictuary" indicate the right of the occupyiilg state to manage the
properties of the state it occupies aiid use them to meet its needs subject to certain limitations. These
limitations are derived from the temporary nature of the occupation and the lack of sovereignty of tlie
occupying state. Therefore, tlie occupying state is forbidden, inter alia, to change the characrer and
nature of tlie governmeiital properties (in the context of the settlements, state laiid), except for security
needs or for the beiiefitof tlie localpop~latioii.~'
As iioted above, the settleineiits permaiiently and significantly cliailge the character of the state lands
011 which tliey are built. Becaiise the settlements do not iiieet eitlier of the two exceptions, their
establishment comtitutes a flagrant violation of Article 55 of the Hague Regulatioiis.
B. International Human Rights Law
The fuiidamental breacli of international law described above lias repercussions that also constitute
huinail rights violations. Tliis part of tlie report brieflysketches the provisioiis of international law that
Israel violates by allowing the presence of the settlements and settlers, and refers to the chapters of the
report tllatexainine eacli of the violations in detail.
The fundainelital liuman rights, as they appear in the Universal Declaration of Human Rights, were
drafted in two international conventions that the UN adopted in 1966: the International Coveiiaiit on
Civil aiid Political Rights aiid the International Coveilant on Economic, Social and Cultural Rights.
Israel signed aiid ratified bot11of these coveiiaiits.Tlie two UN coinmittees respoilsible for iiiterpreting
the coveilantsandmonitoring their implementation have unequivocally statedthat these covenants apply
to al1persons over whoin the signatoiy states have coiitrol, regardless of sovereignty. Furthermore,
tlie two coininittees expressly stated that tliey also apply to Israel in regards to its actions iil the West
Bank."-'
Right to Self-Determination
The firsi article, wliicliis common to both coveiiants, states:
1. Al1peoples have the right to self-determination. By virtue of that riçht they freely determine
their political status and freely pursue their economic, social and cultural development.
2. Al1peoples may, for tlieir own ends, freely dispose of their natural wealtli.. .In no case may a
people be deprived of its owii ineans of subsistence.
62. l'uval Ciiribar,"The UclligcrciitOcciipani as a Usiifructuaryand lsraeli Scttlciiicnts on 'StatcLands'in the Wcsi Bank and CiazaStrip,"
63. Sec the coiicludiiigcoiiiiiicnts thatthe t1vocoininiuccs issucd aficr tlicir hcarings on reports that lsracl subinittcd: Coiniiiittcc oii
Econoniic. Social and Cultiiral Kights, 19"'Session, ElC.1211Add.27;Coniniittcc oii HuiiiaiiKights, 63" session, 1998.CCl'KICi79lAdd93111receiit years, the Israeli governinent, the Palestiiiiaii Autliority, and most of tlie international
commuiiity have agreed that tlie proper fraiiiework for realizing the right to self-deterinination of the
Palestinian people is the establishineiit - alongside the State of Israel - of an independent Palestiiiiaii
state iii the WestBank aiid Gaza Strip.
Chapter Seven of tliis report presents a inap of the WestBank that deliiieates the areas currently lield
by settleinents and their jurisdictional areas that are closed to Palestiniaiis. The map shows tliat many
settlementsblock tlieterritorial coiitinuityof dozens ofPalestiniaii eiiclaves,which are currentlydefined
as Areas A and B. This lack of contiguity prevents tlie establisliment of a viable Palestiiiiaiistate, and
tlierefore preveiitsrealization of the riglit to self-determination.
Also, as is shown in Chapter Seven, tlie settlements deny the Palestinian people a substantial portion
of two resources that are vital to urban and ecoiioinic growtli - land and water. Tliis pheiiomenon is
conspicuousin the Jordan Valley,wliiclicontains significaiitland and water reserves that areexteiisively
used by thesettleinents in that area.
Right to Equality
The right to eclualityis one of the pillars of human rights. It is set forth in tlie second article of tlîetwo
covenaiits,and in the second article of the Universal Declarationof Human Rights, as follows:
1. Everyoiie is entitled to al1 the rights and freedoms set forth in tliis Declaration, without
distinctioiiof anykiiid, sucli asrace,color,sex,language, religion, political or otheropiiiioii,national
or social origiii,property, birth or otlier stahis.
2. Furtlierinore, iio distinction sliall be made on tlie basis of the political, jurisdictional or
inteniational status of the country ortelritory to whiclia person belongs, whether it be independelit,
trust, non-self-goveriiiiigor under aiiy other limitationof sovereigiity.
Tliisreport, particularly Chapter Four, demonstratesIiowIsrael lias used laws, regulations, and military
ordersto carsyout anundeclared annexation of the settlementsinto the State of Israel.The aniiexation's
direct effect is tlieapplication of different legal systems, and different protections, to the Jewish and
Palestiiiian populations living in tlie same ten-itory.Whereas the settlers benefit fsoili tlieir stahls as
citizens of a democratic state and eiijoy al1the rights that accoinpany citize~isliip,the Palestiniaiis live
under a military occupation that deiiiesthem these rights.
The transfer of certain powers to the PalestinianAutliority in the context of the Oslo Accords changed
matters oaly sliglitly. Most Palestinians are still exposed to the bureaucratie controls of the Israeli
occupation, andtlie IDF is still able to impose, for exainple, broad restrictions on inovement, to restrict
entsyand exit from tlie Occupied Territories,aiidto detaiiiPalestiniaiis. The settlers, on the other liand,
reinaiii subject to total civilian coiitrol,just like Israeli citizens living withiii tlie Green Lines, and are
not subject to the Palestinian Autliority in any matter. This situation, in whicli an individual'srights
are deterinined accordiiig to his or lier national identity, constitutes a flagrant breach of tlie right to
equality.Right to Property
The right to property is vested in Article 17 of the Universal Declaration of Huinan Rights, wliicli
provides:
1. Everyoiiehas tlieright to owii property aloiie as well as in association with others.
2. No one sliallbe arbitrarily deprived of his property.
Protection of private property is well grouiided in iiitematioiial humanitariail law, and is fouiid, intel-
ulin, iii the Hague Regulatioi~s(Article 46) aiid in the Fourth Geneva Convention (Article 53). Israeli
law recogiiizes this right iii Section 3 of the Basic Law: Human Dignity and Liberty, wliicliprovides:
"There sliallbe no violation of the property of a persoii."
Chapter Three discusses tlie legal-bureaucratie system tliat Israel created to control the land iiiteiided
for the establishment and expansion of settlements. Because some of these laiids were privately or
collectively owned by Palestiiiiaiis, and the settlemeiits were illegal fsom their inception, a significant
proportion of the seizures of land infriiiged the Palestinians' riglit to property. Furtliennore, tlie
procediires Israel used in taking over tlie laiidentailed flagraiit, arbitrary breaches of due process.
Right to an Adequate Standard of Living
Article 11of the Intematioiial Covenaiit onEconoinic, Social aiid Cultiiral Rights States:
The States Parties to the preseiit Covenant recognize the right of everyoiie to an adequate standard
of living for liimself and liis fainily, including adequate food, clothing and liousiiig, aiid to the
contiiiuous iniproveinent of living conditions.
Chapter Seven discusses a common phenoinenon in various areas of the West Bank: the location of
settlcineiits very close to Palestiniaii towiis and villages, tlius liniiting their urban developrnent, at least
in one direction of possible expansioii. In some cases, the settleiiieiit is purposely situated on the side
of the Palestinian comiiiuiiitythat is tlie iiatural direction of expansion for the particular cominunity.
This pheiiomenon is analyzed in Cliapter Eiglit, wliicliexamines the effect of the Ari'el settlement on
Palestiniaii resideiitsin the area.
Ailotlier phenoinenon tliat affects the urbaii-development options available to the Palestinians is the
discriminatory use of physical plaiining, wliicli is discussed in Cliapter Six. Israel has used military
legislatioii to change the plaiining meclianism that was previously iii effect. This chaiige was intended
primarily to servetlieiiiterestsofthe Israeli administration and the settlers, wliile almost totally igiioring
the needs of the Palestiiiiaiipopulation.
111some areas, the blocking of Palesliiiian ui-bandevelopinent has created housing sliortages and an
iiicrease in population deiisity. Tliese liardships resultedin part froin Israel's settlement policy and
discriininatory planning systern,aiid consequently infringed the Palestinian'sriglit to adequate housing
and coiitinuousimproveineiit of living conditions.
As emphasized in Chapter Eight, the seizure of land used for farming or graziiig ofteii severely affected
the priinary source of incorneof entire faniilies.This liaiin undoubtedly led to a significant deterioratioil
in the standardof living- a violationunderArticle 11of the Iiiteniational Covenaiiton Economic, Socialand Cultural Rights, quoted above - and of Article 6 of the same covenant, which recognizes tlie riglit
of everyone to work and to iiiake a living through work that lie or she freely cliooses.
Freedom of Movement
Article 12of the International CovenantoiiCivil and Political Rights provides that everyone shall have
tlie right to freedom of inovement, witlioutrestrictioiis, in his couniry. Tlie right to move from place to
place is iinpoi-tantbecause moveiiieiit is necessary to live noi-inallyand to exercise many other rights
delineatedin international law,such as the right to work, liealth, educatioii, and to maintain family life.
Cliapter Seveii will show that a substaiitial proportion of the settlemeiits that were establislied aloiig
the central hi11regioii were set up iiear Road No. 60, which is tlie niaiil north-so~itlitraffic artery il1
the WestBank. To ensure the security and freedorn of moveinent of settlers il1this area. the IDF set
up clieckpoints along the road, and froni tiine to time lias iinposed harsh restrictioiis on Palestinian
moveinent aloiig certain parts of tliis road. Since the beginiiing of the al-Aqsa intifada and tlie iiicrease
iiiPalestiilian attacks on Israeli cars on the roads, the IDF lias tiglitened the restrictions to the poiiit of
almost totallypreventiiig Palestiiiiaiisfrom traveling on roads used by settlers.
C. lnjury to Settlers
Since tlie begiiining of tlie occupatioi~,tlie settler population has been a frequent target of attacks by
Palestinian residents. Tlie gravity of tlie attacks varies from stoiies thrown at cars, which only cause
property dainage, to shootings and the layiiig of explosives, wliicli have killed Israeli civilians. The
number oîattacks iiicreasedduiing thefirst intifada(1987-1993), and silicethe begiiiningof tlieal-Aqsa
intifada, thePalestinian attacks oii settlers liavebeen comnioiiand iiicreasingly severe.
Palcstiiiiaii Authority officials and non-governrneiital orgaiiizatioiis liave hinted, sonie even statiiig
opeiily,tliat tlie illegality of the settleineiitsjustifies the use of any means to figlit tliem. For example,
the PalestinianAutliority'sMinister for Prisoner Affairs,Heysliain 'Abdal-Razel, justified an attack on
a bus transporting school childreiifrolii the Kfar Darom settleineiit in the Gaza Strip, wliiclikilled two
civilians aiidwounded nine, witli fivecliildrenainong the wounded, sayiiig:
The perpetrator of tliis attack was one of the Palestinianpeople. Wecommitted it againstpeople who
occupy Ourlaiid.Froiii Ourpoiiit of view, anyaction agaiiistthe occupation is legaLh3
111ai~othercase, a nuinber of Palestinian NGOs publislied a statement in the press saying that the right
to oppose the occupatioii legitimates Palestinian attacks on settlers. Tlie NGOs fùrther stated that tlie
settlements seive a iuilitary fuiicti011and the settlers, therefore, are iiot entitled to civilian statu^.^^
Ailotlierargument tliat Palestiiiiaiissometimes raise in this context is that settlers take part in violent
attacks against Palestiiiiaiis,and the Israeli authorities do iiot interveiie and enforce the law. 66
64. Kcith .ichhui~,,"Missilc Attacks Stokc I'alcstinianDcfiaiice,"Ii~temalionulilerultl Tribune. 22 Novciiihcr 2000.
65. Al-Qud.sls3. July 2001. Thc staicinciii was publishcd in condciniiation of a B'Tsclcinpress rclcasc that condciniicd attacks on thc scttlcrs.
66. I:«rdetails on scttlcr violcncc and tlic failure to ciiforcc the law against thcm, scc B'Tsclcin,Luiv Eiijorcemen~vis-u-vis 1.si.ueliCii~ilinns
iii //te OccirpiedTerritories1094:B'Tsclern,Ercil Consen,: Isrueli Law Eilfoun Selllc~s in rhc,Occul>icdTerritories. March
2001;R"Tsclcin,fiee Rein: Cyilunte Seit1er.saitd l.srael!~Nuri-Ei!jïLuilOctobcr 200 1.Arguiiieiitsof tliese kiiids undermiiie tlie f~liidaineiitalprinciples of iiiternationalhuinan rights law aiid
internationalliuinaiiitarianlaw.These principles are part of iiiternatioiialcustomary law, whichbinds al1
persons and al1groups, and not oiilythe states that are party to the relevant conventions. The right to
combat the occupation in general and the settlements in particular does not justify disregard for tliese
fundamentalprinciples.
The infliction of extensive injuries on settlers is a flagrant breach of the right to life and security of
persoii, wliich is vested in Article 3 of the Universal Declaration of Human Rights and in Article 6
of tlie International Coveiiaiit oii Civil aiid Political Rights. Also, one of the fundainental principles
of internatioiialhuiuanitarian law is the duty to distinguish betweeii combatants and civilians who do
not take part in the combat. As a collective, the settler populatioii, wliich iiicludes cliildren, clearly
comprises a civiliaiipopulatioii.As sucli,it is not part of theIDF forces. Particular settlers belong to the
security forces,but this fact does iiotaffecttlieciviliaiistatus ofthe otliersettlers,who are not legitimate
targets of attack.
The Palestiniaiî NGOs' arguiîieiit tliat the settleineiits and settlers al1serve Israel's military needs is
imprecise. As Chapter Three will show, Israel made the same argument to justify the legality of the
requisitioiiofprivately-owiiedPalestinianproperty to establish settlements. However,iii 1979,the High
Court rejected tliis argumeiit (see the discussioii oiiElon Moreh below); since tlien, Israel lias iiot
used tliisargument. Paradoxically, iftlie Palestiiiiaiis'argument (and Israel'sargumeiit uiitil 1979) that
the Settlements wereestablished to nieet i~iilitaryneeds is correct, the settlements would iiot breach
international law.
Iiidepeiident attacks 011 Palestiiiians by settlers do iiot affect the civiliaiistatus of the attackers, and
certaiiily not tliat of their fainilies and neiglibors in tlie settlements. That status does not affect, of
course, theriglit ofPalestiniansuiider attack touse the force necessary to defeiidtheiiiselves agaiiistthe
attackers.The Land-seizure Mechanisms
Silicethe begiiining of the occupation, Israel lias taken control of huiidredsof thousands of dunam [four
d~iiiain= 1 acre] throughout the West Bank, witli the primary objective of establishing settleinents and
providing reserves of land for their expansion. It has done thisby means of a complex legal-bureaucratic
iiiechanismwhose central element is the declaration and registration of land as "state land." Iii addition,
Israel uses three complementary methods to seize control of land: requisition for military needs,
declaration of land as abandoned property and tlie expropriation of land for public needs. In addition,
Israel has also lielped its Jewisli citizens to purchase land on the free market for the purpose of
establisliing new ~ettlemeiits.~'Using tliese methods, Israel lias seized coiitrol of some fifty percent of
the WestBank, excludiiig East Jenisalem (see the inap).
Despite the diverse methods used, tliey have al1beeii perceived, and contiiiue to be perceived, by al1the
relevant bodies - viz., the Israeli governinent, the settlers and the Palestinians- as a single inechanism
serving a single purpose: the establisliment of civilian settlements in the Occupied Territories. This
reality is clearly illustrated in those cases where the land oii which certain settlenients are constructed
is composed of a patchwork quilt of plots tliat Israel seized by several different methods. Thus, for
example, the area of the settleinent of Shi10(as of 1985)comprised soine 740 dunam seized for military
iieeds, approxiinately 850 dunam were declared state laiid, and 41 dunam were expropriated for public
need~."~
The establishmentof civilian settleineiits in tlieOccupied Territoriesis prohibited by the Fourth Geneva
Convcntioii aiid the Hague Regulations. Because this was precisely the purpose beliind the meclianisiii
used to seize coiitrol of land in the West Bank, tlie seizure itself also constihites a violation of
international humanitarianlaw.In taking coiitrol of the land,Israel alsof lgraiitly breaclies fiindamental
principles of naturaljustice that are eiishrined in iiumerous rulings of tlie High Court.
Exclusively usiiig the seized lands to benefit the settlements, wliile prohibitiiig the Palestinian public
from using them in any way,is forbidden and illegal in itself. This would be the case even if the process
by which the lands were seized were done fairly and in accordance with international aiid Jordanian
law.This exclusive useof tlie lands has severely limited Palestinian potential for urbaii and agriculhiral
developmeiit (see Chapter Seveii). As tlie occupying force in the Occupied Territories, Israel is not
entitled to determine tlie desigiiated use of public laiid in a manner tliat ignores the needs of an entire
population.
67. Many of ihc tcchnicallei-insin this chaptcr inight ucll bc placcd in invcrtcd coinrnas. givcn the distaiicc bctwccri thcii-apparent incüning
aiid tlic actiial use tliat has bcciii~iadcofWChIiavcrcfraiiicd froin doiiig so sincc our inaiiiaiin in this chaptcr is prccisely to
illiistraic thc iiscorlcgal iTorpurjioscs othcr tliaiithosc for wliicliihcy wcrc intendcd.
68. Usaniah Halabi, AroiiTuriicr aiid Mcron Rciivcnisti, LaiidAlienri/noLego1nndSpu/iul Anu/ysis (Jcrusalcin: Thc
WestBarikData Projcci. 1985).p. 85.As a geiieralrule, the High Court has cooperated with the mecliaiiismused to seize control of land, and
has played an important role in creating an illusioii of legality. Initially, tlie Court accepted the state's
ar&~meiitthat the settlements inet urgent military iîeeds, so tliat the state was allowed to seize private
land to establisli them. Wlien the process of declaring land as state land began, the High Court refused
to intervene aiid prevent the new process.
Eacliof tliesemethods rests on a different legal foundation, combiiiing in different ways and degrees the
legislation existing prior to the Israeli occupation, iiicludingremliants of Ottoman and British Mandate
law absorbed iiito the Jordanian legal system, and orders issued by Israeli military cornmaiiders. This
chapter will discuss the legal background of eaclî of the metliods of seizure and outline the modalities
in wliicliIsrael impleinented tliem.
A. Seizure for Military Needs
Humanitarian customaiy law obliges the occupyiiig power to protect the property of residents of
the occupied area and proliibits it from expropriating iLh9However, an occupyiiig power may take
temporary possessioii of privately-owiied land and buildings beloiiging to tlie residents of the occupied
area in order to house its military forces and administrative uiiits. Suc11seizure is by definition
teinporary; accordingly, the occupying power does iiot acquire property rights in the requisitioned land
andbuildings, and is not entitled to sel1thein to others.Moreover, tlieoccupyingpower is obliged to pay
compensatioii to tlie owners for the use of tlieir property.
011the basis of this exception, Israeli military commanders issued dozens of orders between 1968-1979
for the requisitioii of private land in tlie West Bank, claiming that it "is reqiiired for essential and
urgent military i~eeds."~'Duriiig the above-iiieiitioned period, almost 47,000 dunanî of private land
were requisitioned, most of wliicli were intended for the establishment of settlemeiits. The following
settlemeiitswere amoiigthose established on this land:Matitiyaliu,Neve Zuf, Riinonim, Bet El,Kokhav
Haslialiar,Alon Shvut, El'azar,Efrat, Har Gilo, Migdal Oz, Gittit, Yitav and Qiryat Arba. 72
In several cases, Palestinian residents petitioned the High Court of Justice agaiiist the seizure of tlieir
land, claiming tliat tlie use of this land for the purpose of establishing settleineiits is contrary to the
requirements of iiiteriiatioiîalhumanitarian la^.^^Untilthejudgment regarding Elon Moreh (seebelow),
the High Court rejected al1 these petitions and accepted the state's argument that the land seizure
was legal because the settlemeiits perfoniied key defense and military functions. According to Justice
Vitkon:
In ternis of tlie purely security-based consideration, there can be no questioniiig that the presence
in the administered territory of settlements - even "civilian" - of the citizens of the administering
power makes a significant contribution to the security situation iiithat territory, aiid facilitates tlie
69. Sec, inter c. i-ticlc46 ofthc Rcgulations Attachcd to thc Hague Coiivcntion (IV) Rcsliccting tlic Laws and Customs of W;iron Land.
of 1907,nd Article 53 of the Fourth Geneva Convciition.
70. Thisoiin is not statcd cxplicitly, but niay bc dcdiiccd froin the acccptcd intcq~rctationof tlic 1-IagticRcg~ilations.Sec Yorani Dinstcin,
Luii,.~#'UTp. 234.
71. Thiss the standard formula thatappcars in the ordcrs. For ciarnplc, sec Bet El.59r~pr.rfro,otiiotc
72. Halabiel ul.. Lond.4lieiwtion in iBonk. p. 53.
73.Tlic bcst kiiown petitions arc Bct El; HCS834178,SoloKi111ir1i.r..)c:feir.~ect.(il., Piskci LXir33(1) 971; HCJ 238!79.Ati1ii.c~
el CI111.liiristeorf.llcfcirse el ol., Piskei Dirr14(1) 90. army's performance of its function. One need not be an expert in inilitaiy and defense matters
to appreciate that terrorist elements operate more easily in territory occupied exclusively by a
popiilatioilthat is indifferent or sympathetic to the eneiiiy than in a territory in which there are also
persons liable to iilonitor thein and inform the aiithorities of aiiy suspicious inovement. With such
people the ten-orists will find 110 shelter, assistance and equipment. Tliese are si~iiplematters and
there is no need to elab~rate.'~
Thejustices inthis case also found iio contradiction between the requirement embodied in humanitarian
law that the seizure of private land be temporau and not injure tlie property rights of its owner,
and the fact tliat permanent settlemeiits, including exteilsive and diverse physical iiifrastructure, were
establisliedon the seized land.75
Tlieargument thatthe settlements serve inilitary needs couldbe comfortably adopted under the Ma'arach
governments, which acted in accordance with the Alon Plan. Among right-wing circles such as Gush
Emuniin, however, this arguinent was perceived as unacceptable. They viewed the settlements in the
context of a religious vision; thus, they were not to be justified on security grounds or defined - even
for declarative purposes only - as temporary cornniunities.After the rise to power of the Lihid in 1977,
this approach gained a more central status. Neither Gush Emunim nor certain sections of tlie Likud-led
government were willing to excuse the establishment of tlie settleineiits on security grounds, witli the
concomitant - albeit declarative - definition of these settleineiits as teinporary. This approach, whicli
was supported by some of the ministers iii the Likud govemment that was forined in 1977, eventually
led to the niling in Elon Moreh. Following tlie Court'sdecision in Elon Moreh, the policy of seizing
privately-owiied land to establish settlements stopped.
The petition in Elon Mor-ehwas submitted to the High Court in June 1979 by several residents of the
village of Rujeib, soutlieast of Nablus. Tlie petition asked the court to nullify an order issued by the
IDF commander in the regioii for the requisition of soine 5,000 duiiam.'"lie land affected by tlie
seizure order was slated for tlie establisliinent of a settlement, named El011Moreh. Work on laying the
infrastructiire for tlie settlement begail on the same day the order was issued. The state'srespoilse, as
ciistomary uiitil this case, was that the settlement was planned for inilitary reasons, and accordiiigly
the requisitiori orders were lawful. In contrast to previous cases, however, settlers who intended to
live in Eloii More11joiiied as respondents to the petition. 111an affidavit subinitted to the Court, one
of tlie leaders of Gush Emuniin, Menachem Felix, explailied his perspective regarding the goals of the
seizurc:
Basing the requisition orderson security grounds in tlieir narrow, technicalmeaiiing rather tlian their
basic and compreliensivemeaning as explainedabovecanbe construed onlyin oneway: the settlement
istemporaiyandreplaceable.Wereject tliisfiighteningconcl~isionoutright.It is also inconsistent with
the government'sdecision on Oursettliiigon tliis site.In al1Ourcontacts and from the many promises
we received from government ministers, and most importantly fromthe prime minister Iiimself - aiid
the said seizureorder was issued inaccordancewitl-ithe persona1intervention of the prime minister -
al1see Eloi~Moreh to be a permanent Jewish settlementno Iessthan Deganya or Netanya.77
74. Br/ El,p. 119.
75. ScciiparticiilarJiisticeBcn Porat'sdccisioii in 13ei/</.
76. IHCJ390175. izeikrrteti:Goi~ei~i~riil.ttrrielet al.. Pi.skeiDi1734(1) 1(Eloiii2~hr.c.h).
77. /;/or?rL10vehp.p. 21-22. Ilcçanya and Nctaiiyaarc a kibbutz and a townloçatcdwithin thc CiiccnLincCliaimBar Lev, a former ariny cliief of staff, also cliallengedthe argument of inilitary iieed to establish
Eloii Moreli.Ili an affidavit on behalf of the petitioners that was submitted to the Court, Bar Lev stated
that, "EloiiMoreli, to tliebest of my professional evaluatioii, does iiot contribute to Israel's~ecurity."~"
Agaiiistthe background of tliese two affidavits, which undermiiied the argument of military necessity,
and based on the extensive evidence brought before the court regardiiig the pressure that Gush Ernunim
applied oii the governinelit to approve the settlerneiit,tlie Higli Court ordered the IDF to dismalitle the
settleiiieiitand return the seized land to its owners. The immediate result of tliis ruling was the finding
of an alternative site for tlie establisliment of tlie settleinent of Eloii Moreh. Beyond this, Iiowever,the
ruliiigwas a waterslied in tennsof the legaltools that wouldhencefortli be used by Israel in establishing
aiidexpanding settlements.
SiriceElon Mol-eh,military seizure orders have not been used for the purpose of the establishinent and
expansion of settlements. However, tliis tool liasbeen reintroduced aiid widely used since 1994to build
bypass roads. This occui-redas part of the plans for preparing for the redeployineiit of IDF forces in
the Occupied Territories following the signing of the Oslo Accords betweeii Israel and the Palestinian
Aiitliority.
One of the main coiupoiients of this plan was the construction of an extensive systein of bypass roads
iiiteiidedto nieet four key iieeds defiiiedby tlieMinistry of Defense to facilitate Israeli civilian travel in
tlie Occiipied Territories: to eiiable them to travel in theOccupied Territories witliout passing tlirougli
Palestiiiian population centers; to permit Israelis to travel across tlie Green Line by tlie shortest route;
to maintain "an intenial fabric of life" within tlie Israelisettleinent blocs; and to ensure that Palestiiiian
traffic did not pass tlirougli the ~ettlements.~'Accordiiig to an examination undertaken by tlie State
Comptroller, between August 1994 and September 1996, the aimy issued requisitioii orders in tlie
framework of this plan for 4,386 dunarn of private land, for the purpose of constructing seventeeii
bypass road~.~~
IIIone case, Palestiiiian residents petitioned the Higli Court against reqiiisition orders issued for tlieir
land. They claimed, inter alia, tliat tlie construction of bypass roads for the seltlements could not
be coiisidered a inilitaiy need. The court rejected the petition, acceptiiig the state's argument that the
construction of the roads was iieeded for "absolute security need~."~'
After tlie oiitbreak of tlie al-Aqsa intifada, toward the end of 2000, a iiew wave of land requisitioii
tlirough military ordcrs began. Private lands were seized to coiistruct new bypass roads to replace old
roads or bypass roads tliat were no longer ~afe.~T ~he new roads were intended to ineet the iieeds of the
settlers who, since tlie beginning of the new intifada, liad suffered repeated attacks from Palestinians
while traveliiig on the roads. According to one press report, eiglit new bypass roads are currently in
variouspliases of coiistiuction, at a total cost of NIS 228 million.83
78. F;lonMoreh.p. 24.
79. Statcoinlitrollcr,ilitniiirlRcyorf 48 (in Hcbrcw) (Jcrtisalcin, 1998),pp. 1032-1033.
80. Statc Coinptrollcr,Ai717rroRleport 48, p. 1036. Othcr bypass roadsiiicludcdin this plan wcrc coiistructcd on landscizcd through ordcrsof
cxpro]~riatioiiforpublic purposcs. aiiictlioddiscusscd bclow.
8 1HCJ 2717196,M'rfe/ 01itMirtistci.qfDefer7,~eel ol., Piskei /lin 50(2) 848.
82. Forcxainplc, sec a rcpoil on tlicrcquisition of sonle thrce Iiundrcddunain of land in thc vicinity of al-Khadi-on 5 Scptciiiber2001 (ARIJ.
ANew iI.l~liioi:0vlIOSeize 300 Dzi~z<ronjiul-Klioder L'illoge.Scptciiiber 2001. www.pciica.org).
83. Zc'cvSchil'f."Thc Foolish March of tlic Bypass Roads," Ho'rrrelz,15Fcbruary 2002. Thc roads being pavcd arc thc Tcqoa-Noqcdiin
road (Za'tarabypass). tlic road lcading to thc iioithci-iicntrancc of Bfrat.thc roacljoiniiig Ili-Zahav aiid thc Tians-Saiiiaria Higliway.
ilicAri'cl-Yaiiiiaroad. tlicbypass road iicar Ncgohot, ilic 'Aujabypass roacl.thc road bypassiiig Ya'badfroin tlic wcst, thc Qcdar-Ma'alc
Aduniiniiiiroad.B. Declaration of Land as State Land
The iieed to cope with the increasing nurnber of Higli Court of Justice petitions, combined with the
potential - actualized in the Elon Moreh case - that the court miglit thwart the establishment of a
settleinent, led to pressure on the governmeiit froni the settlers and right-wing parties to fiiid aiiother
way to seize land in the West Bank. The solution was found througli the manipulative use of the
Ottoman Land Law of 1858 (liereafter: the Land Law).Y4 By this method, approximately forty percent
of the area of the West Banlcwas declared state land. Accordiiig to Pliya Albeck, former head of the
Civil Departinent in the State Attoiliey's Office, approximately ninety percent of the settlemeiits were
established 011land declared state land.8s
The legal fouiidation used by lsrael to undertake this procedure is based on two key articles froin tlie
1907HagueRegulations.The first,Article 43, requires the occupyingpower torespect the lawsapplyiiig
in the occupied territory.The essential elerneiitsof the Land Lawwere adopted first by British Mandate
legislation, aiid later by Jordanian legislation, and accordingly contiiiued to apply at the time of the
Israeli occupation in 1967.The second fouiidation is Article 55, which permits ail occupying power to
managethe properties of theoccupied country (in the occupied territory) and to derive profitstherefroin,
while at the saine time iiiaiiitaining the value and integrity of those pr~perties.~~ 011 the basis of this
clause, Israel has argued that the establishment of the settlemeiits is a lawful act of deriving profits
wliicli,in addition, contributes to maiiitaiiiing the properties of the Jordanian gover~unent.~'
The use of state land for the establisliment and expansion of settleineilts,unlike the use of private lands
seized under tliepretext of inilitaiy iieeds, has enabled tlie High Court to avoid tlie issue. Petitions filed
by Palestinians againstthe process of declaring land as state land andagainstthe existence of the appeals
coinmittee (see below) were rejected by the High Court, which affirmed the legality of ~nechanisms.~~
Afterrecognizingthe state's riglitto these lands, the High Court refused to acknowledge thePalestinians'
riglit to object to their use, claiining they could not prove tliat they personally were injured. As no
petitioiis have ever beeii filed to the 1-IigliCourt cliallenging tlie legality of the settlements under the
Hague Regulations, the High Court has never liad to state its position on this issue.
The Ottoman Land Law
The OttornaiiLand Law defines five types of possession or owiiership of land.8v
Mulkrefers tocompletelyprivately-owned laiid.The proporiion of land in the WestBank that is defined
as n~ulkis negligible, and found maiiily witliin tlie built-up area of tow~is.'~Wc~qflaiidsiiiclude two
sub-types: laiid iiitended for religious or cultural activities and land used for al1otlier purposes, which
lid withiiilsracl ~intilits rcplacciiiciit in 1970by a diffcrcnt law passcd by the Kncssct,The Lands Law,5729-1969.
85. Pliya Albcck, 1,crnd~iirrndScrnlcrria(in Hcbrcw) (Iccturc at Bct Ilapraklit oii 28 May 1985,Isracl Bar Association), p. 5.
86.For disciission of tliedctailcd ~irovisioiisiiicurnbciiton tlieoccupying powcr rcgarding govcriimcnt property in an occupicd tci~itoiy,
sec Dinstcin,Lu(f lfi~r,pp. 230-231.
87.Albcck. I~rndsinJirdeaand Suii7ar.ia.11118.-9; Eyal Zaiiiir.Sfnie Lands in -~o Legnl Reiziew,No. 12(in Hcbi-cw)
(Jcrusalcin:Jcrusalciii Inslituic ForIsracl Studics. 1985),p. 42.
88. Sec, for ctaniplc, sec HJC 811285.Fudil Ahthorntirada-Noznr et al 1,.Coiiiinuiideroel01..Piskei Ili1736 (1) 701.
89. I'lcrniiing.BrrildinguiLnitinJuclcaartclSarnurio,cd. Maj.Aliaroii Mishriayot(Judgc Advocalc'sOfTiccand Civil Adtninistiaiion
of Judcü andSaniaria) (in Hcbrcw).p. 425.
90. KcnncthStciii. TheLuririQue~rioi7in I'crlestii7e.1917-1939 (Chapcl Hill: University of Nortli Carolina Pi-css.I984), p. II.are protected against confiscation accordiiig to the laws of Islam." In geileral, Israel has refrained from
takiiigcontrol of bot11tliese types of land.
Miri lands are tliose situated close to places of settlement and suitable for agricultural use. A person
inay secure ownership of suc11land by holding and working tlie land for ten consecutive year~.~* If a
laiidowilerof tliis type fails completely to farm the land for three co~isecutiveyears for reasons other
thaiithose recognized by the law (e.g., tlielandowner is drafted into the army, or the land lays fallow for
agriculturalreasons), tlie land is then known as makhlul. In such a circurnstance, the sovereign may take
possession ofthe land or transfer the riglitstliereinto another persoii.The rationale beliind tliis provision
in the Land Law was to create an incentive ensuring that as much land as possible was fanned, yielding
agriculturalproduce which could then be ta~ed.~~
Mawat ("dead") land is land tliat is half an hour walkiiig distance from a place of settlement, or land
where "the loudest noise made by a persoil in the closest place of settlement will ~iotbe heard."9"
Accordingto the legal definition, tliis land should be einpty and iiotused by any person. 111 this case, the
sovereigilis responsible for ensuring that no unlawiùl activities take place in such areas."'Matrzlkaland
is land iilteiided for public use, where "public" may meaii the resideilts of a particular village, as in the
case of grazing land or cemeteries, or al1the residents of the state, as in the case of road~.~~
An additional method of ownersliip, known as musha'a,exists alongside the above-mentioned types in
inany parts of the West Bank. According to this method, land is owned collectively by the residents of
each village. Eacli fainily is responsible for farrninga particular section of land duriiig a fixed period, at
the end of which tlie plots of laiid are r~tated.~'Although this method was not recogiiized in the Land
Law,or in the British and Jordanian legislation that absorbed the law, it continued to exist.
The Policy
The declaration of land in the West Bank as state land was based 011 the Order Regarding Government
Property (Judea and Sainaria) (No. 59), 5727-1967, wliicli authorized the person delegated by tlie
Coinmander of IDF Forces in the Region to take possession of propei-ties beloiiging to an "eneiny
state" and to manage tliese atliis discreti~ii.~Tliis order, issued shoi-tlyafter the occupation began, was
used through 1979 to seize control of land registered in the iiame of the Jordanian government. Initial
examiiiatioiisrevealed a total of approxiinately 527,000 dunam of such land." Additional examination
of Turkish and British owiiership certificates during tlie first five years of the occupation revealed that
an additional 160,000 duilam were eligible for the status of registered state laiid.Accordingly, tlirougli
91. Raja Shchadc, The Laii,offlle Lund- SerrleineniorldLondlssrrm Under Isroeli Miliiui:i:Occi~potiori(Jcrusalcin: I'ASSIA, 1993).
pp. 15-16.
92. Scction 78. Oiiomon !.und LOWin Plonilbzg,Bziildir7gond Lnnd Larvs,p. 528.
93. Slichadc, TheLoioofthe 1,aild.pp. 22-23.
94.Section 6. Ottoinaii Land iiiPlui~niilg,Building and Lund I.nil:s,11.427.
95.Zaiilir,.StufeLrrildiil.Ilideuund Snii7rri.iap.. 18.
96. Ihid.. 11.16.
97. Stciii. The I.uridQuestion in Palesriire,pp. 14-15.
08. Oi-dcrllcgarding Govcrninciit Propcriy (Judca and Samaria) (No.59), iiI'lunniiig, Builtliilg crndLuiitlLoiiis.pp. 520-523
99. Mcroii Bcnvciiisii aiid Sliloino Kliayat,frinkond GozoAl1rr.sp.. 60.1979,tlieCustodian for Goveriiment Property (liereafter: the Custodian) considered ail area of 687,000
dunam, coiistitutiiigsome thirteen percent of tlie total area of tlieWestBank, to constitute state land.'OO
The Labor-led goveriinieiits through 1977 iised some of this land to establish settlements within the
borders defined in tlieAlon Plan.
Tliis area included land purchased by Jews (individuals or the "national institutions") prior to 1948.
After the 1948 war, tliis landwas lield and managed by the Jordaiiian Custodian of Enemy Property in
accordancewith the rules established iiia Mandatory order from 1939.Io1 One estimate puts tlietotal area
of sucliland at approximately 25,000 dunam. In quantitative terins, the main coiicentrations of tliis land
are in Gush Ezyon, to the south of Ramallah, and around Tulkarni. Smaller areas of land in Jerusaleni
and Hebron also exist.'"*
111December 1979, followiiig Elon Moreh, the Custodian began, with tlie guidance of the Civil
Department of the State Attorney's Office, to prepare a detailed survey of al1the owiiership records
curreiitly available at the regional offices of the Jordaiiian Land Registrar. In additioii, the Civil
Administration initiated a project to inap systeniatically al1 areas under cultivation, using aerial
photographs taken periodicaily. Tliisdouble investigation led to the locationand markitig of lands tliat
the sovereign was entitledto seize under the Ottoman Land Law and the Jordaiiian laws that absorbed
tliis law:'O3
Mii-iland tliatwas iiot farmed for at least tliree coiisecutiveyears, and thus becarne inukhltr[;
Mir-iland tliat liadbeen farmed for less than ten years (tlie period of limitation), so that tlie farmer
liadiiotyet secured owiiership;
Land defiiiedas mauratdue to its distance from the nearest village.
In tliese investigations, tlie Custodian located approximately one and a lialf million duna~n,'~o ~r some
twenty-six percent of the area of the West Bank, considered to beloiig to one of these categories. The
stage of locating the land was followed by tlie process of declaring the land state land, which was
coiiiposed of several stages. 111the first stage, tlie relevant decisioiis and documents relatiiig to land
earmarked for registration as state land were fonvarded to the StateAttorney'sOffice for examination,
and for a decision as to whether the land was eligible for such status. If the decision was positive, the
Custodian beganto act,fonvarding the file to the district officeresponsible for tliearea in wliichthe land
was situated. The Custodian's representative in this office summoned the mt~khtarsfrom the villages
adjacent to the laiid declared state land, took theni for a tour of tlie iiiteiided site and sliowed them
the borders of the area tliat tlieCustodian believed was government property."' Thus, the Custodian
traiisferredto the rnukhtui-sthe responsibility for informing tliose liableto be injured by tlie Custodian's
101.Fordctailcd discussion of Lliclcgal statlis oi'this land. sec Zainir and Bcnvciiisti. "hvish Lands."
102.Ihid.. p. 27.
103.The Ottoinaii LaiidLawwas absorbcd in Sordaiiianlcgislation in a nuiiibcr of laws ciiactcdovcr tlicycars. Howevci; the 1swdctcriliiniiig
whicliI;iiidis to bc dcfiiicdas siatc land isLaw No.-1Thc Protectionol'Statc Landand Prolici~yLaw, iiiPlaiining, Building
o17dLrindLoi.vs,pp. 501-502.
104.Rciivcnisliaiid KliaTIII.l'estRairkaiid GcizuAllas, p. 61
105.ZaiiiiSIole1,nndsiii.li~driiand Su~iiorio,p. 13.decision to seize possession of a particular area. Oiice tlie declaration was made, those liable to be
iiijuredby the registration liad forty-five days to submit an appeal to a military appeals co~nmittee.'~~
Approxiinately 800,000 diiiiaiii of land were declared and registered durin2 tlie period 1980-1984.107
Tliereafter, tlie Pace of declaration decelerated, both due to the changes in the composition of the
goveriinieiitfollowing the elections (see Chapter One) but mainly because, by this stage, the settlements
liad already beeii assured enorinous reserves of land for the foreseeable future. Several limes B'Tselem
requested information froin the Israel Lands Administration regarding tlie scope of lands curreiitly
registered as state land, but lias not received a reply.
The declaratioiî of huiidreds of tliousands of dunam in the Occupied Territories as state laiid was made
possible mainly because much land was not registered in Tahzr[the land registration office]. Altliough
tlieOttoman Land Law required the registration of every plot of land, many residents diiriiigthe period
of Turlcishnile did not obsei-vethis provisioii. The reasons for tliis included a desire to preserve the
collective owiiership system (inz/shnla);a desire to evade tax liability, and ail effort to avoid being
drafted into tlie Turkisliariny.loY The records tliat survived from this period are vague, and do not easily
permit the identification of a specific plot of land. Only in 1928, during the British Mandate period,
was a systematic process introduced to survey al1state land and register owiiership on the basis of
plot identification nunibers. The process of regulation contiiiued at an extremely slow pace during the
period of Jordanian coiitrol of the West Bank. By the time Israel occupied the West Bank, regulatioil
proceedings Iiadbeei~completed for approximately one-third of the area, particularly iil the Jenin area
and the Jordan Valley.'oY Iii areas where registration had not been completed, owiiersliip contiiiuedto
be managed over the years on the basis of the possessioii of land, and the mutual recogiiitioiî of the
coniiection of each person to a given plot of land.
At the beginiiing of the Israeli occupation of tlie West Bank, a military order was issued halting the
process of regulation aiid registration of the riglits of resideiits of the West Bank to their la~id."~Israel
justified this delay by arguing tliat it was necessary to prevent injury to the rights of people who left
the area duriiig the war, aiid were therefore unable to oppose the registration of their laiid under another
person'siiaine."' However, to enable Israel to continue the process of registering land as state laiid, it
was determilied tliat the order would not apply to tlie registration of state laiid in tlie Custodian'siîame,
aiidthe declaratioii process continued at an accelerated Pace on tliebasis of a Jordanian law of 1964.'12
111 addition, aiiotlier iiiilitary order was issued establishing a Special Land Registry for the registiy of
traiisactioiis in land lîeld by the Custodian. This was done to eiiable the transfer of the rights of use in
laiid declared state land to one of the settling bodies, i.e., the Ministry of Housiiig or the World Zionist
Organizatioii.'13
106.Ordcr Rcgarding Alipcals Cominittccs(Judca and Saniaria) (No. 172).5727-1967, iiiPlanniiondlaiid Lu~L'.)p,.536-541.
107. Bcnvcnisti and Khayüt, The WestBank and GazaAly.61.
108.Stcin. Tl7cLaiid Que.stio in Pnlest21.e,p.
109.Zaii~ir,Slute LNi.llideaand Sorr~ariu1,1.27.
110.Ordcr Regarding tlic Rcgulation of Laid and Watci-(Judm and Saniaria) (No. 291). 5729-1968, in Plannii7g.Building andLund
Lam, pp. 532-543.
1I1.Zainii; StareLund b7Juclfn nndSanlcrriu,p. 27. Rcgardiiig tlic incasurc of sinccrity of thisjustification, sec Scction C. oiiabsciitcc
pro~~ci~in. the prcsciit chaptcr.
112.Rcgistration of I'rcvioiislyUnrcgistcred Irnino\,ablc t'ropcrty Law, No.6 for 1964,iiil'lannii~g,Btii1di11.ayndLut7dl~aivs,p. 503.
113. Ordcr Rcgarding thc Rcgistraiion ofTraiisaclions in Certain Lands (Jutlca and Samaria) (No. 569). 5735-1974, inLegi.slati«nin .lrrdrn
ondSot71ariu,cd. Zvi I'rcislcr (in Hcbrcw) (Jciusalcrn: Kctubirn, 1987),p. 105.The Appeals Committee
The inilitary appeals cominittee is composed of three persons appointed by tlie commander, one of
wliom inust have legal trai~iing."~Tlie central principle guiding the committee iii hearing appeals by
Palestinian residents against the Custodiaii's niling is that the burden of proof always rests with the
person claiining that particular land is noi state land: "If the Custodian has coiifirmed, in a written
certificate bearing his signature, that any property is governinent property, that property sliall be
considered goveriimeiitproperty until proven othenvise.""j If the committee decides to reject an appeal,
or if an appeal was not filed on tiine, the process is completed and the land is registered in the
Custodian'sname.
The chances that the appeals committee will nullify the process of declariiig and registering a
Palestinian'sland as state land are extremely low. In most cases, the committee merely iubberstamps
tlie military administration'sdecisions. Since the appeals committee is the oiily body before which tlie
decisions of the Custodian may be challenged, its existence allowed the Israeli authorities to continue
the process of declaring lands as state land on one hand, while claiming that this process was under
judicial review on tlie other hand.
Tliefirstobstacle facingPalestinian efforts to prevent the registration oftheir land as state land was their
lack of knowledge of the procedure. The information provided by the n7ukhrarsregardiiig the declared
area was often vaguebecause the rnzrkhiarsthemselves receivedpartial infonnation froiii tlieCiistodiaii.
Another reason for the lack of clarity was that the nzukhturs,having been appointed by the inilitary,
liad problematic relations witli the residents and often preferred not to act as spokesmen for Israeli
decisions. As a result, it was oiily wlien the work building the settlement began tliat the residents were
first inforined tliat tlieir land liad been declared state la~id.''~ Since actual construction usually began
months and evenyears after the date of declaration, the owiiersof the land could not turn to the appeals
coinmittee because the forty-five day period for filing an appeal had long since passed.
The case of the Makhamara harnzrln[clan] illustrates tliis problem. Four families from tlie Makliainara
han7tilujointly held some 280 dunam of land near Yatta (Hebron District), southwest of the Maton
settlenient. Tlie families had farmed the land consistently throughout the years. At the end of 1997, a
settler from the settlement of Suseya arrived on the plot of land and erected a caravan. He proceeded
to tlireaten, with firearins, meinbers of the hamula, preventing them from reaching the field to farin
their land. After the fainily filed a complaint at the Hebron police station claiining that tlie settler was
trespassing on tlieir land, a clerk representing the Custodian ilifonlied them that the area in which
the settler from Suseya was living had been declared state land in 1982. For its part, the Mt. Hebron
Regional Council added that the land in question belonged to the council, on the basis of a pennissioii
contract it had signed witlithe World Zionist Organization in December 1983.
114. Section 2 ofihc Ordcr RcgardingAppcals Coininittccs (Judca and Sainaria) (No. 172). 5728-1967.
11S.Scctioti 2C of thc Ordcr Rcgarding Govcrninciit Propcny, , uildii~gond Lard I,s.. 522.
116.Sincc 1983.thc nii/lih/uii;liavc becn the sole soiircc of iiiforination for the rcsidcnts bccausc IlicCustodian ccascd atiacliing a inap to
tlicdcclzirationordcr dctlic hordcrs ofarcato wliicli tlicordcr rclaRajaShchadc. Occupier'sLui+!I.cruelo1Il'ellu17k
(R'ashington:liisiiiuic1orPalcsiinc Sludics, 19X8),p. 30.The Malcllainarahnmula, represeiited by the Association for Civil Rights in Israel, filed a protest with
tlie appeals cominittee."' In his response to the appeal, tlie Custodiai~claimed that "according to the
aerial photographs lield by tlie Respondent [Le., the Custodian], the preparatory and farining work
took place a few years ago iii a completely rocky area. in a manner that does not graiit rights to tlie
Appellant~.""~The Custodian further claimed that the area iii which the settler from Suseya erected
liis caravan "liasbeen traiisfei-redto the WorldZionist Organization in an allocation agreement, and in
connection tlierewith the Respoiident shall claim that the Appellalits inissed tlie date for submissioii of
an appeal."Ii9The case is pending before the appeals c~minittee.'~~
Palestiiiian residents who do receive word of the declaratioii in time to appeal encouiiter yet anotlier
obstacle iiiipeding tliein from turning to tlie appeals committee. Prepariiig an appeal entails eiiormous
expeiise, iilcluding payment of a fee upon submission of tlie appeal,lZ1precise mappiiig by a qualified
surveyor of tlie laiidof wliich the appellant claiins ~wnersliip,'~~ and retaining an attorney to prepare an
affidavit and represent the appellant before the ~0mmittee.I~~
Tliose who overcome these obstacles and appeal tlie decisioii of the Custodiaii to the co~nmittee
iii time will liave great difficulty proving their riglits to lands declared state lands. Since the
declarations generally take place in areas where the British orJordaniails did ilot register the land, the
appeals-cominittee liearings inevitably center oiipossession and farming as tlie basis for the right to the
land. The appellant is required to prove to the coinmittee that the land in question liad been held and
farmed for ten coiisecutive years to substantiate his ownersliip of tlie laiid. For the appeal to succeed,
tlie evidence bro~ightby Palestinians has to contradict the periodic aerial photographs taken by the
Custodian tliat indicated the cessation of farmiiig at any Receipts for payment of land tax,
whether from tlieJordaiiian authorities or tlie CivilAdministration, iiiay constihitepr-ima,fncic evidence
in disputes between two individuals, but "do not constitute evidence against the state aiid do not impair
tlie state'sriglits.""'
Maiiy Palestinians liave indeed discoiitinued or reduced their involvement iii agriculture, due in part
to the policies introduced by Israel in two key spheres: water aiid the labor market. One of the main
coinpoiieiits of Israel's policy concerniiig water is to reject al1applications submitted by Palestiniaiis
to receive permits to drill agricultural wells, wliich prevented development in that sphere.IZh As for the
117 Alipcal 1312000,Irrnu'il%[).anet i3Cu,todion for Go~arnn~enlProper-!LiInJudea arldSnniariu
I18.Paragiaph 2 of the Custodian's rcsponsc,ihid.
119.Paragralih 2 of thc Custodian'samcnded rcspoiisc, ibid.
120.Scttlci-sfrom Siiscya rcccntly also scizcdcontrol of additional laiidto the wcst ofthcir scttleinent, claiining that this was statc land.
Palcstinians livc on this land, mainly in shacks and cavcs. and grow various crops aiid graze thcis Rocks. In Scpteinbcr 2001. the Palestiiiians
appcalcd to ihc High Court, asking tliaithc sctilcrs be cvictcd from thcir land and thcy bc allowcd to continuc to farin the land without
hindraiiec.Thc state has iiot yct respondcd to thc pctition (HCJ 7530101,'AliKholilhlusolerri Shoritih et al. 1:CivilAdrninisrrolionfor
Judca aild Surnurioet al.).
121.Sectioii 3(D) of the Provisions RcgardingLcgal Arrangcinciits iii the Appcals Conimittccs (Judca and Sainaria), 5747-1987, in Plu~ining,
Birildiriyoiid Land Luii's,p. 567.
122.Ibid., Section 7.
123.Ihid.. Section 3(C).
124.Rcgardiiig tlic qiicstioii as to tlic test for "1-casonablcagrictiltusal farining" in the light of tlic land iiivcstigator and tlic High Court
rulings. scc AvraliainSochovolsky. Eliyahu Cohcii and Avi Ehrlich,Ju&a arldSa-iLund Rights und Luiv in Isrcrel(in Hebrcw)
(TcI-Aviv:B~irsi,1986),pp. 29-35.
125.Ibid., p. 37.
126.R'Tsclcm,Thirsti~fornS(11zrrin Re.s»lviiigrhe l#hrerCrisis in the fist Brinkin the Occlrl~iedTerritorii,.~aild i1.rRe.volir/ionin the
Final-S/u/u.sAgr-eeincnr(Position Pûpcr,July 2000), p. 42.labor market, Israel encouraged the iiitegration of Palestinians in its own labor market. This becanie a
Iiighly attractiveproposition because of tlie higli salaries relative to those in tlie West Bank, and many
Palestiiiians have beeii inclined tlierefore to abaiidoiiagriculture."'
Eveii if a Palestinian appellant meets the demandiiig burdeii of proof required by the cominittee aiid
convinces its members tliat lie indeed owiis tlie land in questioii, the coinmittee may still deiiy the
appeal. The reason for tliis is tliat the liearing before the committee sometiines take place after the
Custodian has already sigiiedpermission contracts with one of the settliiigbodies, and after preparatory
work hasbegun toward the establishment of a settlement. Accordiiigly, in order to preveiit the reversa1
of an existing situation, Sectioii 5 of Order Regarding Government Property (No. 59) includes the
followiiigprovision:
No transaction undertaken in good faith by the Custodian and anotlierperson in any property which
tlie Custodiaiibelieved, at the time of tlie transaction, to be government property sliall be iiullified,
and it shall contiiiueto be valid even if it is proved that the propertywas not at that tinie governnient
property. '2S
Silicethe decisions of tlie appeals coinniittee are not publisliedand are not accessible for public review,
B'Tselemwas unable to uiidertake a systematic review to ascertain how maiiy tiines tliis provision has
been used regardiiig land tliatwas declared state land.
1-Iowever,tlie good-faith argunient Iias been used by Israel to approve iiew coilstniction in the
settlements, even in cases wliere the laiid-registratioii process Iias not beeii conipleted. For exaiiiple,
silice 1984, the construction oii three new neighborhoods iii the settleineiit of Giv'at Ze'ev (Moreshet
Binyainin A, B and C) began before al1 the land on which these iieigliborlioods were established
liad been declared state land, aiid without tlie signing of permission contracts with the Cu~todian."~
Despite this fact, and despite tlie fact that the Civil Administration did iiot approve the outline plan
for tliese neigliborlioods,the planning board of Mate Binyamin Regional Couiicil granted peimits for
development work and for private construction on al1three sites. Wheii this situatioii became apparent
at an early stage, the head of the Civil Departnieiit in the Miiiistry of Justice, Pliya Albeck, prepared
a lepl opinion in which she stated: "Notwithstandiiig the defects, questions and doubts, it would
seeni desirable toenable the coiitinued coiistruction of pliase A of Moreshet Biiiyamiii, botli since the
houses were built in good faith by residents who received buildingpermits, and because the absence of
objectioiisprovides a fo~iiidationfor believing that the land was acquired la~fully.'''~~
Additional problems regardiiigthe inilitaiy appeals committee have to do witli its place in the military
hierarchy and its niode of operatioil. Firstly, the appeals conimittee is coiiipletely dependent on the
body on wl-ioinit is supposed to provide quasi-judicial review, i.e., the military administration or the
Coiiimaiiderof IDF Forces in the Regioii. Tlius,the samebody that issues land-seizure orders is also the
primary legislativebody thatestablishcd the cominittee, and tlie only bodyentitled to appoint or dismiss
127.B'Tsclcin,BuildersqfZon- HumcrnRigh1.7C7oltrlion.(s?fPuleslinictnthe0ccuj)ird Tei.i.itorie.sWoIIlsrtrel ctnd/he
S~.///ciiieiits(Scptcnibcr 1999).Cliaptcr 1.
128.Section 5 of tlicOrdcr licgardirig <;ovcrriiiicntI'ropcrty.in Pl~irtiiing.Building und Lund Luivs.p. 522.
129.Statc Coiiiptrollcr.Annunl Rryort 43 (in Hcbrcw) (.lei-usalcm,April 1993).pp. 911-914.For anothcr cxainplc of the cstablishinciit of
a scttlcinciitin the .lordanValleyprior 10the rcgistra~ionof ihc land irithe Ciistodian'snamc. sec Statc Cl epoil37cr, ,411ni1aK
(in Hcbi-cw)(Jcrusalc~ii.1987).11.1205.
130./bid.p. 91 .its members."' Moreover. the Order Regardiiig Appeals Cornmittees stipulates that the committee's
decisions are merely "recoinmendatioiis," wliile the final decision rests witli the commander in the
region, who is entitled to accept or reject these recominendations at his discretion, without any public
criteria being establislied for liis de~isioii.'~Tliis relationship between the judiciary and the body it
reviews constitutes a gross violation of the independence of the appeals committee.
Secondly,the appeals committee is not subject to the rules ofjudicial proceedings or the usual rules of
evideiicepertainiiig in Israel or in any otlier legal system. According to one of the sections in the order,
"tlieappeals coinmittee shall not be bound by the laws of evideiice andjudicial proceedings, except for
those established in this Order, and shall determine its pro ce dure^."' ^^liese provisions seriously impair
the principle of transparency and fairness in thejudicial process.
These problems in the fùnctioning of the conmittee are particularly grave as the existence of a
quasi-judicial body such as the appeals committee prevents the submission of petitions to the Higli
Court. One of the conditions for intervention by tlie High Court is tlie absence of alternative relief, The
presence of alternative relief does not completely bar sucli intervention, but it significantly lessens tlie
williiigness of the Higli Court to i~itervene.'~~
C. Absentee Property
According to the Order Regardiiig Abandoiied Property, '" any property wliose owner and holder left
tlie WestBank before, during or after the 1967 war is defined as an abandoned property and attributed
to the Custodian forAbandoiied Property on behalf of the IDF commander in the region. The Custodiaii
is entitled to take possessioii of the property and to manage it as he sees fit."' According to tlie order,
the Custodiaii, on behalf of the Commander of IDF Forces in Ille Region, may classify property as
"abandoned property" in instances in wliicli tlie owner or possessor of a property is unknown.I3'A
furtlierorder published by Israel in tliismatter expanded the definitionof the term "abandonedproperty"
to include property belonging to a person who is a resident of an eiiemy country, or a corporation
controlled by reside~itsof an enemy
In legal terms, the Custodian for Abandoiied Property becoines the trustee on behalf of the owner of
the property wlio left tlie West Bank. The Custodian is responsible for protecting the property pending
the owner's retum. Moreover, on the rehlni of the owner of the property defined as abandoned, the
Custodian inust restihite iiot only the property itself, but also the profits he derived therefro~n."~As a
geiieralrule, however, Israel has forbidden the return of refugees to the WestBank, and thereforehas not
131.ScctionI and 2 of the Ordcr Rcgardinç Appcals Comiiiittccs (Judea and Saiiiaria) (No.iiPlui7ning.Buil(lii7gand
LuiidLuii,.. 536.
132.Ihid.. Scction 6.
133.Ibid., Scctiori 8(A).
135.Ordcr RcgardiiigAbandoned Propcrty(Private Propcrty) (Judca aiidSainaria) (No. 58). 5727-1967. inPlunning, Buildingund Lar7dLUI~J.~.
pp. 515-519.
136.Ibid.. Scctiori8, p. 516.
137.Ibid.. Scction 4(C), p. 516.
138.Ordcr Kcçaiding Abaiidoncd Propcity (Privatc Propcity) (Additional I'ro\,isi»ns)(Judca and Saiiiariain(No. 150).5727-1967,
Pl~i717iB.uil~lrnguiid Luircl1,nii:v.111'5.34-535.
139.16id..Scctions 7 Y,at p. 516.liadto facemassive claims fortherestitution of abandoned property.The exceptioiisto this nile occurred
whenPalestiiiiaiisretui-nedto theirhomes pursuant to permits for family unificatioii and deinaiidedtlieir
property fromthe Custodiaii. Ail exainination undertaken by the State Comptroller sliows tliat, atleast
througli 1985, tlie Custodian customarily retui~iedmoney accuinulated in favor of the absentees (in
cases wliere their eligibility was proven), but at nominal value and without liiikage or interest, despite
tlie liigh inflationrates in Israel duriiig the first half of tlie 1980~.'~'
The Israeli administration lîascombined tlie fuiictionof tlieCustodian forAbaiidoiiedProperty with tliat
of the Custodian for Goverimlent Property, forming a single body called tlie Custodiaii for Goveriiment
and Abandoned Property iii Judea and Samaria. Just as the Custodian for Government Property is also
tlieCustodian forAbaiidoiied Property, so too are the basic niles applying to the procedures for seizure
aiidmanagement similar inbot11cases.Accordingly, a persoiî who claims tliatproperiy belonging to him
wasunjustly recorded as abaiidoiiedproperty may tuni to the military appeals committee. Tlieburdeii of
proof rests witlitliepersoii claimiiig that a particular piece of laiid is not an abaiidoiiedprope~ly.'~~
As in tlieprocess of declaring land state land, if the Custodian has made a traiisaction in an abaiidoned
property, and it subsequently emerges that the property was not eligible for status as abandoned
property, the traiîsaction sliall not be iiullified if it is proved that the Custodian made the transaction
iii good faith.142 An illustratioii of the use of this provisioii is the case in which the Custodiaii signed
a permission agreement with the World Zioiiist Orgaiiizatioii iii relation to seventy dunam earmarked
for the establishineiit of the settlement of Bet Horon. The owner of tlie land, who was resident in the
WestBank at the tinie, filed an objection witli the appeals cominittee, arguiiigthat lie was the owner of
tlie land oiiwhich the settlement was constructed. In its ruling, the appeals committee stated that while
tlierewas no doubt that tlieland indeed belonged to tliePalestiiiiaiiappellant, and tliat lieliad not leftliis
hoine, the transactioii waslegitimate since it was made "in good faitl~."'~'
This practice, whiclî lias caused injury to the property of Palestiniaii residents who were defined as
absentees althougli tliey did not leave the area, is additional to Israel'sgeneral policy preventing the
retuni of refugees wlio left their honies due to the war. Given this reality, Israel's claiin tliat al1the
land-arrangement procedures were suspended "with the goal of preventiiig injury to the property of
absentees"cannot be seen as anything other than a cynicaljustificatioii inteiided to facilitate the process
of seizing coiitrolof land.
A report by tlie State Comptroller sliows that during tlie first few years of the occupation, the
Civil Adininistration registered approximately 430,000 dunam of land and some 11,000 buildings as
abaiidoiiedpr~perties.'''~ Since a significailtproportion of tliis laiidwas not farmed, it was later declared
state land.The reinaiiiing areas continue to be defined as abandoned properties, aiidhave been leasedby
the Custodian - both to relatives of the absentees and to settling bodies to establish settlenie~its.'~~
. - . .--... --.
140.State Comptrollci;Annuol Repor.i37. p. 1189.
141.Scctiori 10(0) of the Order RcgardingAbaiidoiicd Propciiy, in Plcinning.B~iildingund Lund LUIYSp,. 517
142.Il~id..Sccti«ii IO(A).
143.Appcal 16/64,Alhi170 i!Cirsiodil~nfr,jr Go~>er.in~-rperl)N7Jirdcn~rndSoiiloria.
143.Statc Coinpirollcr,,411nlclcpol-137.
145.Bci~vcnisti,irriernrrd.SnninrioI.ericon. ji. 52.D. Expropriation for Public Needs
Land expropriation in the West Bank (excluding East Jerusalem) is effected under the provisions of
a Jordaiiiaii law that delineates the phases required for the expropriation of land and the reviewiiig
bodies.lJhAccording to tlie law, a public body (local authority, developineiit agency, etc.) iiiterested
in expropriating private land must publish its intention in the official gazette. If no appeal is filed to
the court by the owiier of the land withiii fifteen days, tlie application is discussed by tlie Millisterial
Couilcil, wliicli examines whether the purpose declared by tlie initiating body is indeed in the public
interest and decides whetlier to purcliase the land or acquire rights of use for a defined period. The
decision niust be approved by tlie king, and is published in the officia1gazette. The Land Registration
Offjce is subsequeiitly responsible for forwarding copies of the decision to the owners of the land, aiid
the initiating body niust enter into iiegotiatioiiswith the owners regardiiig the level of coi~ipensation.'~~
According to Section 12 of tlie law, the notification and negotiatioii phases may be omitted in urgent
cases if tlieMinisterial Council "was conviiiced that there are reasons requiring the establisher [nainely,
the initiator] to hold the land iinmediately."
Israel has ameiided tliis law to suit its needs twice, by means of military orders.'" The first amendment,
in 1969, transferred tlie authorities of tlie Ministerial Council and the king to the "empowered
autliority" on behalf of tlie commander of the region, which later becanie the deputy head of tlie Civil
Admiiiistratioi~.'~I~ n addition, the order abolislied the requireiiient in the Jordaiiian law to publish the
decisions in the officia1gazette and deliver them to the owiier of the land. The legal autliority for
discussiiigappeals against expropriations was changed by tlie order from the local court, as establislied
inthe Jordanian law,to the militaiy appeals comrnittee. Possession aiid management ofthe expropriated
land were traiisferred to the Custodiaii for Government andAbaiidoned Property in Judea and Sainaria.
Tlirough 1981,i.e., for some twelve years following the first ainendment, no alternative procedures were
establisliedallowiiig for the publication of expropriation decisions or for notification of tliose injuredby
these decisions. In 1981, a second amendment was iiitroduced following a petition to the High Court
filed by Palestinian resideiits, who claimed that they had only leanied of an expropriation decisioii
after tractors began to work on the According to this amendment, the "empowered autliority"
in~istpublish its decisions in the Compilation of Proclamatioiis and must inform the owner of the land
personally or through the mukhtur of tlievillage in which he is resident.
Inpractice, inost of thenotifications given tolandowiiers - both beforeand after tliesecond amendment-
are fonvarded via the mukhtacs. As iioted above, the stakis of the mukhtuvs ainoiig the Palestinian
population is probleinatic, aiid they ofteiipreferred to refrain froni giving out that informatio~i.'~I'srael,
oii its part, chose to undertake most expropriations on tlie basis of Section 12 of the Jordaiiiaii Law,
146.The Land Law -Accluisition for Public Nceds, LawNo. 2 for 1953,in PlunnigndLond Lnivs,pp. 439-446.
147.This proccdiirc is dctailcd in Scctions 5-9 of Thc Land Law -Acquisition for Public Necds.
148.Ordcr Rcgarding thc Lands Law (Acquisition for Public Nccds) (No. 321and No. 949), 5729-1969 aiid 5743-1981.in Planning, Builclii7g
cindLnnd Lüivs, pp. 545-547.
149.Zaiiiir,Siute L«ridiii.Iridta~indSniii~iriu.p. 33.
150.HCJ 202!8l, Tibib etihfinis/cr o/'De/knse.PisheiIlin 36(2) 622 (hcrcüftcr: TuDib).
151. Hala6.(il.,Lrrnd,lliei7rr//1I?+.Batik,p. 33.wliich wasiiite~idedsolely forurgent cases. This section exempts the authorities from certain obligations
regarding tlie injured laiidowilersand also prevents High Court intervention. 152
The Jordaiiiaii law specifically states that the expropriation of land is perrnitted oiily wlien it is for
a public purpose, so Israel has iiot used this law extensively to confiscate land intended for the
establislirneiit of settleiiieiits. An exception to this gerieralization is the case of Ma'ale Aduminim.
established in 1975oii an area of some 30,000 dunam expropriated from Pa1e~tinians.I~~
Israel lias, Iiowever,used this law extensively as a tool for seizing control of land for the purpose of
constructingan extensive network ofroads serving the settlements, coiinectingoiie settlement to aiiother
aiid connectiiig the settlements to Israel, and in most cases deliberately circumventiiig the Palestiiiian
commuriities.These expropriations were upheld by tlie HigliCourt, wliich accepted the state'sargument
that theroads uiiderreview alsomet the transportation iieeds of the Palestinian population. In one ruliiig
relatiiig to tlie expropriation of land for the coiistruction of a road connecting a iiew iieighborliood iii
the settlement of Qarne Shomeroii with Israel, while circuiiiveiitiiigthe city of Qalqiliya, Justice Shi10
deterinined tliatin effect "a road is a iieutral installation." He added:
It is true that part of the route that is the subject of this petition passes not far froin Ras, wliich isthe
edge of the area iiiteiidedfor the establishment of a Jewish comniuiiity by the naine of Zavta (Qarne
Shoineron C), and tliat saine section - iiisofar as it fonns part of the regional road coiitinuing to tlie
east - is intended to create access fi-omthe west to the cominunity of Zavta. However, it shortens and
iinproves the road to the village of Habla and to several sinaller villages in the ~icinity.'~"
In mostcases,the argumentthat the bypass roads were iiitendedto serve al1the local residents, includiiig
Palestiiiians,proved to be cornpletely spurious.Nevertheless, Israel continued to use this arguinent in al1
the HigliCourt petitions that Palestinians filed against tlieexpropriation of their land, aiid in most cases
the Court acceptedtlieargument.155
BITseleindoes iiot have aily estimate of tlie scope of land over whicli the IDF lias seized coiitrol by
meaiis of the Jordanian expropriation law.According to the State Comptroller, IDF actions in the West
Bank in preparation for the impleineiitationof the Oslo BAccords (see below) eiitailed the expropriation
of private laiidunder tliis law for the coiisti~ictioiiof twelve bypass road~.'~Thapter Eight of this repoi-t
offers a detailed account of the receiit land expropriation to construct roads in the vicinity of the Ari'el
settlement.
Land Expropriation in East Jeru~alernl~~
The legal tool used by Israel to seize control of land in East Jerusalein for the purpose of establishiiig
settleinents was a Mandatory order from 1943absorbed into Israeli Iegi~lation.~~~l~is order is similar,
153.Paragraph3 of thc rcspoiisc of the stat3125!98, 'AbdAl-',.lzizbf~rlionit~ie>dl1~Comn1crndt.iflDF ForcesinJudeoond
Sutnuria(hcrcaftcr: i\lo'ale..ldunitnim).
154. ïiibih.p. 627.
155. For cxaiiiplc, scc HCJ 393182..lurIs~kturiill-A4u'uti.Cornntrrnd~?,rf'lDF Forces, Piskci Diri 37(4) 785, and HCJ 6592194,
Mirt7ic1pulitqjf~Hïbron 1,h.lini.r.tcorfDefetlse et ul.,Piskri Din 50(2) 617.
1-6. Siatc Coinptrollci; Arlcpovr48. p. 1036.
157.Foi.furtliei.discussion of tliis aspcct. sec H'Tsclcin,.4Po1ic:vo/"Biscriininotiort,
158.Tlic Lands Ordci.(Acquisition fi)rPublic Purposcs) 1943.tliough not ideiltical, to the Jordaniaii law for acquisition of land for public needs as implemented
iii the reinaiilder of tlie West Bank. The Mandatory order empowers the Minister of Finance to issue
expropriation orders for privately-owiied land in cases wlien this isjustified by a public need. Unlike
the Jordanian law, tliis order grants tlie Miiiister of Finance complete discretioii in determining wliat
coiistitutes a public purpose ("aiiy need authorized by tlie Minister of Finance as a public purpose.") As
iiiJordaniaii law,the landowilers are eiititled to compensation at market value.
Since 1968,Israel bas expropriated approximately 24,500 duiiam of land - over one-third of the land
annexed to Jerusalei~l.'~W ' hile it is difficult tocalculate a precise figure, most of the expropriated land
was uiidoubledly privately owiled by Palesti~iians,~~ a~nd oiily a small proportion was state land, wuqf
land, or land owned by Jews prior to 1948.'" The vast majority of the expropriated land was used to
establish twelve Jewish settlements, termed "neighborhoods" iii domestic Israeli discourse.
Although tlie expropriated land is iiiteiided for the Jewisli population oiily, Israeli governrnent and
Ministry of Jerusalem officials have claimed oii several occasioiis - along the lines of the siinilar
declarations regarding expropriations iii the remaiilder of the West Bank - that the land expropriations
are iinplemeiited for the benefit of al1the resideiits of the city, "Jews andArabs alike."'" These claims
arecontradicted by numerous official and semi-ofKcialdecisioiis and statemeiitsreflecting Israel'sdesire
to "JudaiSl" East Jesusalem, with the goal of preveiiting aiiy future comproinise over this land."j3One
petitioii, filed in the 1-IighCouit in 1994 against the expropriation of land in the south of Jerusalem to
establisli the Har Hoiiia settlement, clainied tliat the plan discrirninated against the city'sPalestiiiians.
The I-iigliCoui-trejected tlie petition oii tlie grouiids that "tlie questioil of populatiiig tlie area is iiot
currently genilai~e."~~~
E. Acquisition of Land on the Free Market
TheMa'arach-ledgoveniments preferred to liinitthe taking of control of land iiithe Occupied Territories
to govemineiital institutions. A military order was published in 1967 iinposiiig a sweepiiig restriction
oii the iiiiplementation of land transactions iiî the West Bank without the written authorization of the
commaiider of the regi0n.l" Accordingly, until thelate 1970sthe only body iiivolved intliepurchase of
laiidfroin Palestiniaii residents for tlie purpose of establisliing the settlemeiits was the Jewisli National
Fuild tlirough Hima17uta,a Companyestablislied forthis purpo~e.'~~
After the Likud came to power, this policy was reversed: the acquisition of land in the WestBank was
iioweiicouraged. In formal ternis, this change was reflected in a decision of the Miiiisterial Committee
for Settlemeilt in April 1982 providing approval in priiiciple for the establishineiit of settleinents as a
"private initiative."16'This autliorizatioii embodied tlie coinmitineiit of the governinent to enable Jews
159.Ir Slialcin, Lasi Je~.-rPlriniiingSilun~ion(in Hcbrcw) (Jcrusalein, Noveinbcr 1999), p. 4.
160.B'Tsclcii, Policy ~?fDiscrinrinu/ion.p. 57.
1hl. lcwish-owncd laiid was situatcd inaiiily in 11icJcwish Quartcr of'thcOld Cily; as iiotcd abovc, tliis was considcrcd statc land. sincc it was
bcld aiid nianaged by thc Jordanian Ciistodian of Enciny Propcrty (Zaiuir and Benhailds. pp. 87-98).L
162.For ctainplcs of such statciiiciits. sec R'Tsclein.APolicy ofBiscriniination. pp. 60-61.
163.lbid. pp. 44-55.
164.HCJ 5601194,'Odeh.4'irlu,dficie/ ri/.v.Pi-iineil.lirii.sleiel (il., Tak)246.yon 94 (4
165.Ordcr Rcyarding Land Transactions (.ludcaand Saiiiaria)(No. 251,5727.1967. in Plai?ning,Ruilrlingand Lai~dl,uil~.sp.p. 513-514.
166.Gazit, 1ï~ol.ri7i.1pp. 241-245.
167.lhidto purcllase land and settle tlirougliouttlie WestBank, including areas where land could not be declared
state land because it was registered in the owiier'sname and held accordiiig to the provisions of the
Ottoman Land Law.'" The Deputy Miiiister of Agriculture in the second Likud governinent, Micliael
Dekel, was given respoiisibility for the subject of "private settlemeilt." He worked under the close
though iiiformal supervision of the tlien Minister of Defense, Ariel Sharon.Ifi9
Through the eiiactmentof several military orders,Israel anieiidedthe Jordaiiian land legislation in order
to adapt it to the needs of Israeli entrepreneurs. For example, tlie powers of local judicial committees
under Jordanian law to register land traiisactions were traiisferred to the Custodian on behalf of tlie
inilitary ~ominander."~Because Palestinians have always considered thesale of land to Israelis an act of
treason, an order was issued exteiiding tlievalidity of in-evocablepowers of attoniey from five years, as
provided by Jordaiiian law.to fifteeiiyears.I7'This amendment enabled landtransactions to be executed
wliilepostponing registration for an extended period, tliereby not eiidaiigeriilgthe life of the Pâlestinian
seller by exposiiighis ide11tiiy.l'~
The involvement of private eiitrepreneurs in the traiisfer of land to Jewish haiids was accompaiiied by
fraud, forgery and various criininal offeiises iiivolving both Israelis aiid Palesti~iiails."~These offenses
were possible, intea rlia, because of the relatively vague nature of the registration of land ownership
in most of the West Bank.'74Moreover. tlie governmeiit's decisioii to enable the establisliment of
settlementsas aprivate initiative led to iiicreaseddemaiidfor land inthe WestBank, particularly in areas
adjacent to the Green Line (popularly known in Israel as "five minutes from Kfar Saba"). Land prices
in these areas rose sharply, creatiiig a stroilg incentive for various Israeli intermediaries to purchase
Palestiiiian land.'75
As a result of these fraudulent acts, in many cases Palestinians oilly learned that their land Iiad been
sold 10 Israelis by Palestinians wlien tractors inoved in to prepare the grouiid to build a settlement.
Coiiversely, many Israelis were eilticed into purchasing plots of land in the West Bank frorn Israeli
intermediaries, oiilyto filidout later tliatthey had paid for a worthless scrap of paper. This plienomenoil
was halted iii 1985, when the police begaii to investigate huiidrcds of cases of fraudulent land
transactions. Several of those involved were indicted, including senior government of fi ci al^.'^"
168.Hofiiuiig.Sfotc Secirritv Kcrsu.~the Kirleo/'l.nn~,p. 311.
169.lhid.
170.Ordcr Rcgardiiig Land Laws (Jlidca alid Saniaria) (No. 450), 5732-1971.
171.Ordcr Regarding tlic Law toAiiicnd Pro\4sioiis Relating to Real Estatc (Judeüarid Sainaria) (No. 811).5740-1979, in Plrriining,Rililding
cindLai7dI.ciip. 554.
172.Slicliüdc.0cczlpiei.k l.orv,p. 40.
173.Albcck, Lai7d.sb7Jztc/cstcriiidS<,p. 12-16.
174.Sec Scctioii R ol'ihis cliapicr Ior f~irtlicrdiscussion.
175.Rcrivcnisti,I,e.~icoi7of Jiideo uiirlSurnurio. p. 139.
176. Hoh~iiig,StrrieSc*cu1,kr:vusc Rit/!fLoii.,pp312-313.The Annexation Policy and Local
Government
A. The Annexation Policy
The governmeiit,the Knesset and the IDF cominanders, with the blessing of tlie High Court of Justice,
altered Israeli and militaiy legislation with the objective of enabling the de .f~cto annexation of tlie
settlemeiits to the Stateof Israel, while avoiding theproblemsthat wouldbe caused by dejure aiinexation,
particularly in the international arena.I7'This aiinexation created a distinct separation between the
Jewish settlersand the Palestiiiian residents, who continued to live under military rule. Eradicating the
significanceof the Green Line in the everyday life of Jewish residents of the West Bank made a crucial
contribution to thesuccess of Israel'spolicy to traiisferpopulation fromIsrael to the settlernents.
The result was the creatioii of two types of enclaves of Israeli civilian law in the Occupied Territories -
persona1and territorial. The significance of tlie persona1enclaves is that any Israeli citizen, and iiideed
any Jew (see below), in the Occupied Territories are subject, wlierever they may be, to tlie authority
of Israeli civilian law for almost al1purposes, and not to the authority of the military law applying
in these territories. This situation was perpetuated in tlie Oslo Accords in a manner tliat denied the
PalestinianAuthority any power over Israelis in the Occupied Territories, including Israelis entering its
owiiterrit~ry."~
Creation of the enclaves began at the beginning of tlie occupation. The Israeli governmeiit and the
Knesset imposed Israeli law on the settlers in particular, and on Israeli citizens in the Occupied
Territories in geiieral. Iiiitially, this was impleinented tlirough emergency regulations enacted in July
1967by the Minister of Defe~ise.'~A ~ccording to these regulations, Israeli citizeils wliocommit offenses
in the territories are tried in Israeli civilian courts. Although they did not prohibit Israelis from being
tried in courts in the Occupied Territories, tlieseregulations effectively limited the power of the military
commander and the local courts, for the first time granting Israeli citizens extra-territorial status there.
In 1969,the Minister of Justice enacted regulations empowering Israeli civiliaii courts to liear any civil
inatter between settlers (and Israelis in gerieral)aiidPalestinians, or among settlers tlieinselves.'" Tliese
courts naturally operate in accordance with Israeli law,ratlier than the local law tlial supposedly applies
in the Occupied Territories.Local courts were effectively - thougli not foi-rnally - denied the power to
judge settlers.
177.Exiciisivcscctioiisof tliis cliaptcr arc bascd on tlic B'Tsclcnireport, On the Riy to Annexafion:s e.~rrltingji.oiizlc~tionR
rlic,Estnhlishnteiirond Ex~of~the A4u'uIeAdun~irnSe//Ie~iierz(tInforination Shect, J15-70For a comprchcnsive study of
thisissue preparcd in the latc 1980s,sec Eyal Bcnvenisti, Lego1Duolisni: The.4bsorption ofrhe OccrrpicdTeri-itoiiesiilto /srciel (Jcrusalcin:
WestBank Data Basc Projcct, 1989).
178.Agi-ccincntoiithe Gaza Strip and the Jcricho Arca (Oslo l), 4 May 1994.Article l(26): Isracli-Palcstinian IritcriniAgrccincnt oiithe West
Bank aiid tlic Gaza Strip (Oslo2), 28 Septcnibcr 1IV..AIIOCX
179.l':iiicpcncy112cgiiiOffensesin the Adiniiiistci-cdTc-Surisdictionaiid LcgalAssistaiicc). 5727-1967. 1111977,tlicnamc was
ainciidcd 10rcad "Judca andSainaria, the Gaza Strip, ihc Golan Hcighls, Sinai and Solith Sinai."
180.KulcsofCivil Pmccdurc(I.'urnisliingof [~ociiinciitsfor the AdiiiinistcrcdTcrritorics). 5730-1969,Kovelz ïakkaiiot 7482, p. 458. Asiinilar
ni-diilailccwas issucd rcgarding the laboi-courts (Koverz7iil;kc1n»t2482.p. 460).The Knesset has periodically extended by statute tlie emergency regulations inentioned above.18'In
1984, the Knesset iniposed additional laws on Israeli settlers, including laws relating to military service,
the Income Tax Ordinance, the Population Registry, National Insurance, etc. The law also enipowered
the Minister of Justice to add other laws to this list,with tlieapproval of the Knesset's Constitution,Law
and Justice Cornn~ittee.~'~
Israeli law is iinposed not only on Israelis resident in the Occupied Territories, but also on Jews who
niove to the settleinents, even if they do not have Israeli citizenship:
For the purpose of tlie acts of legislation listed in tlieAddenduni, tlie expression "Israeli resident" or
any other expression regarding residency, residence or presence in Israel as stated therein, shall be
coiisidered also to iiiclude a person whose place of residence is in the region and who is an Israeli
citizen, or who is eligible to iinmigrate to Israel in accordance with the Law of Return, 5710-1950,
and who would fa11under tlie said term were his place of residence in I~rae1.I~~
The territorial enclaves were created by tlie imposition of Israeli civilian law on the Jewish local
authorities establislied in the West Bank. III 1988, tlie Knesset einpowered the government to impose
the Developineiit Towiis and Areas Law on "local authorities and Israeli citizens" in tlie Occupied
Territories.lY3 This was the first time tlie Knesset had iinposed one of its laws on the settlements in
territorial terins, ratlier than merely 011the settlers as individuals, as had been the case previously. In
recent years, tlie Knesset lias adopted several laws - relating to local authorities and elections for these
authorities - that apply directly to the settleme~its.'~~
Military legislation, in the form of tliecollection of military orders publislied by the Commander of IDF
Forces in the WestBank, provides an extremely effective tool for realiziiig Israel's policyof imposing its
own law on the settlements and the settlers, while separatiiig tliem froni Palestinian residents and their
coinmunities. In some cases, these orders have constituted a waiver by tlie military commander of his
powers in tlie settleinents in favor of Israeli civilian authorities, wlietlier in tlie settleinents or in Israel.
Most of the orders were phrased in suc11a maiillerthat it is not directly evident that tliey are intended to
apply solely to the settlements and not to Palestiniaii coinmuiiities or residents. The de.facto enactnient
was effectedby means of an appeiidix or addendum to tlie order detailiiig tliose coinmuiiities inwhich it
applies. sometimes only as a inatter ofpolicy inpractice.Asignificaiitportion oftliisinilitary legislation,
as discussed in the last part of this cliapter,relates to the settlements as local authorities, and makes an
important contribution to tlie process by wliicli these settlements have been converted into territorial
e~iclavesgovemed by Israeli law (see below).
The complex fabric of laws, regulations and orders combine to fonll a ratlier straightfonvard pichire of
annexatiori.For alinost al1purposes, the lives of settlersproceed as do the lives of Israeli citizens living
withiiiIsrael, even thougli the area in which they live is subject to inilitaiy rule. Settlers elect their local
or regional council, participate in Knesset electioiis,pay taxes, National Insurance and liealthinsurance,
181.Ainendincni and Extension of thc Validity of tbc Eincrgency Rcgiilations (Jodca and Sainaria, the Gaza Sirip, S-nai aiid South Sinai
Jurisdiction aiid Legal Assistance) Law,5744-1984.6.cction
182.Ihid, Scctiori6B(B).
183. Ihid.. Scction 6R(A).
184.Dcvclopmcnt Towiisaiid Areas Law, 5748-1988, Sc3(E)n
1x5.RcgioiialCouiicils (Dateof GeiicrnlElcctioiis)(Aincndiiiciit)Law,5757-1997;Aiiieiidinciitof LocalAuthoritics Ordinance(No. 21) Law,
5757-1997; LocalAiithoritics (Special Elcctinns) (LcgislativcAincndments) Law,5758-1998.Iii certaiii inatters, tlie local autliorities in Israel are subject to the Ministry of the Iilterior, which is
responsible for supervising their proper functioiiing. Eacli localautliority belongs to a particular district,
for wliicli a unit in the Ministry of the Iilterior is respoiisible. Supervision of the local authorities iii
the West Bank (includiiig Palestinian local authorities) is handled by the Inteinal Affairs Officer of
tlie Civil Admiiiistratioii; for many years, a Supervisor of the Israeli Comniunities operated witliinthis
frainework, and was responsible solely for tlie settleinents. At the beginiiiiig of 1996, presuinably as
part of the process of dejbcto annexation, the unit of the Supervisor of tlie Israeli Coinmuiiities was
traiisferredfrom the CivilAdiniiiistratioii to the direct authority of the Ministry of the Interior,acquiring
a statiissimilar to tliat of the units respoiisible forthe various districts iiiside 1~raeI.l~~
The local councils and inuiiicipalities are iiidependent muiiicipal mechaiiisins managiiig tlie affairs of
wliat are defined by tlie law as siiigle comrnunities, while the regional councils include a ilumber of
coinmiinities iiithe context of a two-tier systernof govenimeilt. The upper tier is the couiicil, while tlie
lower tier iiicludes tliecominunities withiii the area or jurisdictioii of the couilcil, which are managed
in certain matlers by a local coinmittee. The divisioii of responsibility betweeii the regioiial council
and the local coinmittees is iiot clearly or uiiequivocally defined in the law, aiid heiice varies fi0111
one conimuiiity or regioiial couiicil to anotller.However, the local committeesmay not adopt decisioiis
coiitrary to those of the couilcil; in a few areas, such as the approval of budgets, tlie local committee
must obtain the autliorization of tlie regional co~ncil.~~"
Uiitil recently, the sphere of activity of the regioiial couiicilwas usually coiifined to mediatioii betweeil
the coinmuiiities and central governiiieiit, wliile most inunicipal seilrices were provided by the local
cominittees. 111 the early 1990s,however, as the cooperative fiameworks weakened, the regioiialcouncil
became stronger and came to be perceived as bearing direct respoiisibility for iiiaiiagiilgthe affairs of
the coinmuiiity,similar to the iiiuiiicipality or the local couii~il.'~'
Oii tlie recominendation of the official in charge of tlie relevant district, the Minister of the Iiiterior
is empowered to change tlie status of cominunities and local autliorities (transfoi~iiinga group of
coinmuiiities into a distinct regioiial coiuicil, removiiig a given communiiy froin a regional council
and rnaking it a local council, or changing tlie status of a local council to a municipality). Changing
a community to a local council eiltitles it to obtain direct fùiidiug from the Ministry of the Interior.
Moreover, the local council receives significant powers. such as the authority to establisli a local
planning comiiiittee eiititled to issue building permits. The transition froin the status of local couiicil
to that of municipality is generally reflected iii the level of fundiiig received from the Ministry of the
Iiiterior.
In tlie case of the settlements iii the West Rank, the recominendation to establish any type of local
authority is made to the Minister of the Iiiterior by the Supervisor of Israeli Commuiiities, wliile tlie
ininister'sdecisioii is formally implemented by meaiisof a military ordinailce sigiied by theCommander
of IDF Forces in the West Bank.
189.For a criiicisiii of thc aclivitics of the Supcrvisor of thc IiiJudca and Sainaria, sec Staic Compirollcr.Ani7unlReport
5211(inMcbrcw)(Jcriisalcin. 2001). pp. 163-180.
190.Audit orLocal Authoritics Divisioii. Miiiistryof tlic Intcrior,5j>ecirilAut/ilReport or?rhaRqionol Councils 1998(in Hcbrcw) (Jcrusalcin,
Augiist 1998),pp. 9-11.
191.lbidAccordingto a law enacted iii 1992,the minister is iiotpermitted to award the status of a local couiicilto
coinmuiiitieswith a population of fewer than 3,000 residents, nor to award the status of a municipality
to coniinunitieswith a population of fewer tlian 20,000. However, the law grants the minister discretioii
to act otlienvise "if special conditions and circumstances exist."'" As of the end of 2001, four of the
fourteen local couilcils in tlie West Bank had a population of fewer than 3,000residents, and two of the
three iiiui~icipalitiesliad a population of fewer thaii 20,000 (see Table 3 below).
The iiurnber of local autliorities cui-reiitlyexisting aiid serviiig as fi-ameworksfor the inanagemeiit of
settlemeiitsin the West Bank is as follows: tliree iilunicipalities,fourteen local councils aiid six regioiial
councils, coiitaining 106 small settlemeiits. In addition, twelve settlementswere established in areas
aiinexedto Israelin 1967,aiidare includedwitliiiithe area ofjurisdiction of the Jerusalem Municipality.
Table 3
Local Authoritiesin the WestBank
- -*- ---.* - - -
t-orit - -- --- - al- --tu.. - - ---" Number of-Residents** - - - ---- .
Oraiiit Local Council 5,100
Alfe Meilashe Local Council 4,600
- - -
Elqana Local Council 3,000
Efrat Local Council - -- - 6-40--
Ari'el Muiiicipality 15,600
Bet El Local Co~~iicil 4,l O0
Bet Aiye Local Couiicil -
Betar Illit Municipality
ArvotHay arden Regional Council(l8) - 3,000
-- -
Giv'at Ze'ev Local Council 10,300
Gus11Ezyon Regioiial Couiicil(14) 9,600
- - -
HarAdar Local Council 1,400
Mt. Hebron Regional Council(l2) 4,1O0
Megillot ~egionil Counc --l(5) 900
Modi'in I-lit Local Couiicil -- --- -- - 16,400 -
Mate Biilyaiiiin Regional Council(27) 27,200
Ma'ale Adumiliirn Municipality
-- - - - - 24,-00 -- --
Ma'ale Efrayim Local Council 1,500
- -
Immaw'el Local Council 3,000
Qedumiin Local Council 2
Qiryat Arba Local Council 6,400
Qarne Shomeroii Local Council 5,900
--
Sliomeron Regional Couiîcil (30) 17,400
* Tlie numbers in parentlieses relate to the numberof settlements(according to the number of local coininittees recognized by
the Miiiistry of the Interior) includcd withiii cacli regional council.
** Figures of tlie Central Bureau of Statistics for tlie end of 2000.
192 AiraiipcniciintheStdtc17coilo~nA~iicildincof Lcgislatito Scç~irtheB~idgctyiObjcctivcs)Law,5793-1992,Section18C. The Significance of the Municipal Boundaries
The municipal boundaries of the local authorities, Le., their area ofjurisdiction, are marked on a inap
signed by the Commanderof IDF Forces in the West Bank and attaclied to the Order Regarding Local
Councils (No. 892) or the Order Regarding Regional Councils (No. 783), as the case may be. The
borders of the settlements composing tlie regioiial councils, too, are set forth on maps signed by tlie
Commander of IDFForces in the West Bank. In this case, the map defines not the area orjurisdiction,
but the "area of the cominunity" (see Photos 1-4).
The areas constituting these areas of jurisdiction or areas of the cominunity include al1the land of
whicli Israel has seized control over the years by the methods discussed above in Chapter Tliree.
Accordiiigly, the borders of most of the Jewisli local authorities iii the West Bank are tortuous, and
include non-contiguous areas of land (see the lnap attached to tl-iisreport, as well as Chapter Seven
below).
Palestinians are forbidden to enter the areas of jurisdiction or the areas of community of tlie
settlements iinless they received special autliorization. In an order issued in 1996, the Commander
of IDF Forces in the West Bank declared al1 the areas of the settlemeiits to be a "closed military
area," claiming that "...this is necessary for reasons of security and given the special circumstances
currently pertaining, and the need to take immediate emergency measures.. . The order notes that
"the provisions of this declaration do not apply to Israelis."
The definitioii of "Israeli" in the order offers a revealing illustration of the system of separation
created by Israel in the West Bank:
"Israeli:" A resident of Israel, a person whose place of residence is in the region and wlio is
an Israeli citizen or was eligible to iminigrate to Israel in accordance with the Law of Return,
5710-1950, as in effect in Israel, as well as a person who is not a resident of the region and who
holds a valid entry visa to Israel.
This definition given in the order to the term "Israeli" creates a situation in which entrance to an
area "closed for military reasoi~s"is permitted to Israeli citizens, Jews from anywhere in the world,
and any person wlio enters Israel as a tourist (witli a "valid entry visa"). The result is that only local
Palestinian resideiits require specialauthorizatioil from tlie coinmander of the region to enter the area
of the settlements.
The areas of jurisdiction of the regional councils in the West Bank include enormous empty areas
(approximately tliirty-five percent of the area of tlie West Bank) that are not attached to the area
of any specific settlement. These areas constitute the reserves of land for future expansion of the
settlements, or for tlie establishment of industrial zones (see Chapter Seven). Various areas witliin tlie
regional coiincils'areas ofjurisdiction in the West Bank are defined as "firing zones" and are used by
the IDF for military exercises. Other areas are now defined as "nature reserves," where any forni of
developrnent is prohibited.
193.Ordcr flcgarding Sccuriiy (Jiidca and Saillaria)(No. 378). 5730-1970, Dcclaration of the Closiirc of ai1Arca (Isracli Coiniiiiiiiitics)The exteiit to whicli the settlers and tlie Civil Adininistration exercise control over tliese areas is
i~otuiliform, and Palestiniails still use soine of them for agriculture or graziiig. This situation is the
result of Israel's policy of declaring broad tracts of land as state laiid, without always infonning the
residents living on or using these lands. Consequently, tlie expansion of a settlement within the area of
jurisdiction of the regional couiicil to which it beloilgs sometimes eiitails the eviction of Palestiniaiis
from their land. 194
Arvot Ilayardeil Regional Council (almost 900,000 dunain), for example, exercises maximum control
of these areas, a result of the combined effect of the sparse Palestiiiian population in the area and the
farmiilg of soine of this area by settlers. A counter example is Mt. Hebron Regional Couilcil, which
maiiltains almost no supervision over these areas. Thus, duriiig attempts by settlers in recent years to
expand thesettlements in this regional council, it emerged thatareas defined as part of the council'sarea
ofjurisdictioii were used by Palestiniaiis for residence, agriculture or grazing.
103 For cxainplc, sec thc oiitpostscstahlishcd ncai ~hescttlcincnt of Siiscya in tlie ~oiithof the Hebion inoiinlain\, as tliscusscd in the section
oii statc land in Chaptci Tliicc dho\,cBenefits and Financial Incentives
One of the claims made by Israel tojustify the settlements, althougli they are proliibited by tlie Fourtl-i
Geneva Coiiventioii,is tliatthe state does not traiisfer its citizens to the occupied territory. Israel argues
tliateach citizen decidesprivately, of liis own free will, to move tothe settlement.
In reality, liowever, al1 Israeli goveniments have implemented a vigorous and systematic policy to
encourage lsraeli citizeiisto move from Israel to the West Bank. As shown iii tliis cliapter, one of tlie
inaiiltools used torealize this policy is tlieprovision of significantfinancialbeiiefits and iiicentives.For
the purpose of this discussion, a distinction will be made between two types of beiiefits and iiicentives
graiited by the goveriinient: support granted directly to citizens by defining settlemeilts as "national
priority areas," aiid support granted to local authorities in the WestBank, i.e., to the settlenients, in a
iiiaiinertliatfavorsthese settlements in coinparison to local authorities inside Israel.
The puipose of the discussioii in this chapter is iiot to examine the "burden" tliat the settleinents
place oii the nationalbudget, nor to estimate the total suni iiivested in the Occupied Territories by tlie
govenlment. Ratlier,the report will describe those coiilponeiitsof govemment policy tliat influence the
standard of living ofindividualcitizens, and may thereforeconstitutean iiicentiveto migrate to the West
Baiik. Accordingly, thereport will iiot discuss other fonns of financial investments, such as security,
other military expenses or the construction of roads, because these investments constitute, to a certain
extent, a pre-condition for the veiy existence of the settlemeiits,rather than a coinpoilent in iinproviiig
the standard of 1i~ing.l~M~ oreover, given tlie unique reality in which the settlemeiits exist (violence
by Palestiiiians, construction of roads following redeployment, etc.), it is difficult to coinpare these
investmentswitlitlioseinside Israel.
A. The Settlements as National Priority Areas
One of the main tools used to chaniiel resources to the residents of the settlements is the definition
of iiiost of the settlements in the West Bank as "development areas" (according to the tenn applying
through 1992)or as "natioiialpriority areas." This defiiiitioiihas been applied not only to settlements (in
the WestBank andin the Gaza Strip), but also to various communities inside Israel, particularly in the
GalileeandtheNegev.The currentmapof national priority areasaiidtlierelevant incentives and beiiefits
were establisliedin 1998by a corninitteeof directors-geileralheaded by the then director-general of the
PriineMiiiister'sOffice,AvigdorLieberman, and was approvedby tliegovernment headed by Binyamin
Netaiiyahu.'" This map, wliich replaced the previous map, which was established in 1992 under the
195. For conipar:itivc data on tlic construction of iicw roads Toi-scttlc~nciitsin tlicWest Bani<and Gaza Strip in the 1990s. sec Adva Ccntcr,
Gui~c,i.i~it ndirigoffl7e l.srue/iSc~ttlen~c~irnrtJtrdca. Strniciriu,Guzcrund the Golait Heighls ir7the IY9O.s:Lo<.olAzrthorilies,Rcsidei71iul
Coristi.~innd {lieC:on.slriic/ioioiJRoads (in Hcbrcu,) (January 2002), pp. 58-62; for data for thc years 2001-2002. sec Zc'cv Schiff. 'Thç
March ofSiiipidity «il the Bypass Roads," I-la'tiretz,15 Fcbruary 2002.
196. Priiiic Miiiistcr'sOtficc. Coordiiiation, Monitoring and Control Division, ~V~ztionuPli-iorilj'Airos (in Hcbrcw) (Jcrusalciii. 26 April
1908).government of YitzliakRabin,'" contiiiued to apply under the governnlent of Ehud Barak (1999-2001)
and uiider tlie present government lieaded by Ariel Sharon.
The purpose of the map of national priority areas, as defined by the committee of directors-general
froin 1998, is "to encourage the generatioii remaiiiing in tliese areas, to encourage initial settling by
new immigrants, and to encourage the migration of veterans to the priority areas." Accordiiig to the
coinmittee, "tliemap of national priority areas is based principally oii geographical criteria," assuining
that "the scope of opportunities of citizens residing in tlieperipheral areas is in inany respects limited by
cornparison to that in tlie center." 19"
Wliile tlie geograpliical consideration might explain tlie inclusion in tlie priority map of the Negev and
Galilee areas, it cannot explain the inclusion of most of tlie settlemeiits iii the West Bank, a substantial
number of wliichareadjacent or relatively close to Jerusalem and the cities of the Tel-Avivmetropolitan
area, where many of the resideiits of the settlements are employed (witli tlie possible exception of the
Jordan Valley settleme~its).'~A ~ccordingly, it would seem that the factor determining the inclusion of
most of the settlements on the map is iiot the "limited opportunities" available to the settlers due to the
distance fiom the center of Israel, but ratlier the desire to encourage Israeli citizens to inove to tlie West
Bank for political reasons. The cominittee was certainly riglit to emphasize that the map of national
pnority areas is based "principally" - i.e., iiot onl- on geographical considerations.
The benefits and incentives provided for the priority areas are granted by six govenlment ministries:
Housingand Constiliction; National Infrastructure (tlirouglitheIsrael LandsAdministration); Education;
Trade and Industry; Labor and Social Affairs; and Finance (througli income ta^).")^The level of
inceiitives varies according to the classification of each settlement as a Class A or B priority area. This
classification isgiven separately for each benefit, so some settlements are simultaiieously categorized as
ClassA, Class B, or no priority, depeiiding on the governinent niinistry and the benefit involved.
TheMinistrp of Con.stn/ctionand Hozrsingprovides generous assistancefor tliose who purcliase a new
apartmeiit or build tlieir own home in national priority areas. In areas defined as Class A priority areas,
the ministry provides a loan of NIS 60,000, half of which is converted into a grant after fifteen years. In
Class B priority areas, tlie loaii is NIS 50,000, of whicli NIS 20,000 is converted into a grant after the
same period of time. It should be noted tliat the rules established by the cominittee of directors-general
state tliat the grant cornpolient is not supposed to be provided in affluent, establislied coinmuiiities
iiicluded in tlie ma^;^^ however, tliis coinpoilent is provided in al1the settlements in the West Bank,
including those that are affluent.The ministry also contributes to development costs by means of a grant
coveriilg up to fifty percent of expenses, according to the classification of tlie cominunity aiid the type
of expense. It is important to note that tliese benefits areprovided in addition to the "eligibility loans"
provided by theministry throiighout Israel on tlie basis of personal criteria.
r'sOffice, Nufio~tnlPr?ori[yAreas (in Hcbrcw) (Jerusalciii, 30 Novcnibcr 1992).
198.ilirifiorl'1-iArcas, 1998. p.4. "Vctcrans"in apposition to "ncw immigrants" (II-ai~s.).
199. For a dciailcd analysis of the gcographical dispersion of tlicscttlcii~cnts,scc Chapter Scvcn bclow.
200. Data on theiictits iiicludcd in this part of thc ch;iptcrarc bascd oii h'al. 998.uiilcss othcrwisc statcd.
201. According to tlie coiniiiittcc, prospcroiis coinmunitics arcthosc that bclorig in tlic 7-10 grade cliistcr irithc socioccoiio~nicrarikingof ihc
Central Hurcauof Siÿtistics.The Israel Lands Administration, wliich is accountable to tlie Ministry of National Infrastructure,
provides discounts of sixty-nine percent and forty-nine percent (for Class A and B priority areas,
respectively) fromtlievalue of the land in the payment of lease fees for residential coiistruction, and a
discount of sixty-nine percent on leasehold fees for industrial and tourism purposes.
The Minisfiy uf Education provides a range of incentives for teachers who work in Class A priority
areas, including promotion and tlie addition of four years' seniority, partial exemption from paymeiit
of the employee'scontribution to the in-service training fund, participation in rental costs and travel
expenses, aiid reiinburseinent of seveiity-five percent of tuition fees paid by teachers at institutions
of higlier educati~ii.~~C ~lass B areas do iiot appear in tlie Ministry's map of benefits. For parents
iii Class A areas, the Miiiistry of Education provides a discount of iiinety percent for tuition fees in
pre-conipulsory kindergartens. Tliis discount is also provided in settlements included on the iiiap and
definedas affluent(see above), coiitrary to the policy regarding coinmuiiities inside Israel with the saine
profile. In addition, the Ministry of Education covers al1transportation costs for students to schools in
the settlements, regardlessof whether a given settlenient is included in the map of priority areas.
TlzeMinistry oj'lndustryand Tradeprovides "approved enterprises" pursuant to the Capital Investments
Encouragement Law, i.e., those defined as entitled to government support, witli grants of thirty percent
in Class A priority areas (twenty percent according to the law, and a ten percent admiiiistrative grant),
and twenty-three percent in Class B priority areas (ten percent according to the law and a thirteen
percent administrative gr~int).~~ A'iiy enterprise approved in accordance with tlie law enjoys income tax
benefits in al1areas, both in ternis of corporate tax and in terms of individual taxation on income from
the enterprise.In addition, industries situated in ClassApriority areas are entitled to iiicreased grants for
research and developinent, wliich can cover as much as sixty percent of tlie costs of each project. The
Ministry of Iiidustry and Trade also covers a significant portion of costs for the establislimeiit of new
industrial zonesand the maintenance of existing zones, including significant discounts on land prices.
It should be noted that during the 1990s, the ministry established ten new indiistrial zones in the West
Bank, inostly witliin the area of the six regional councils, at an average cost of approximately NIS 20
inillion per zoiie.'O"he enterprises establislied in these industrialzones are under Israeli ownership, and
some ernployPalestiiiiail~.'~~
The Minislry of Lahot-and SocicllAfSaillrs provides social workers it einploys in Class A priority areas
witli a package of benefits that is almost identical to that provided to teachers by the Ministry of
Education (Le., promotion and seniority, funding of tuition fees for higlier education, etc.) Regarding
Class B priority areas, the ministry provides social workers witli tliree years' seniority, seventy-five
percent reiinburseiiieiit of travel expenses, and financiiig of seventy-five percent of the einployee's
contribution to the in-service-training fi~nd.
202. f:or a coinl~ai.isoiiof the bciicfits providcd for scttlcinofteducation with tliosc providcd for Arab coininunitics aiid
dcvslopiiicn( towtis. sec Adva Cciitcr, Alriority Sfotir.~iii the Field cf E-Arah Cr~rnn~irniti.~e.velop~iiei~tToivnsund
Seffleinents(iii Hcbrcw) (Fcbruary 1999).
203. Capiral Invcstiiiciil Eiicouragcinctit Law. 5719-1959. Tliis law was amcndcd in 1990. In 1980, thc Capital Invcstincnt in Agriculture
fliicoiiragcnicntLaw.51980,was addcd.
204. "Slia'arBi~iyainin"bctwccn f'csagoiaridOfra; "Einck Shilo" ncar Sliilo; "Baron" ncai-Qcduinim: Gusli Ezyoii Industrial Park ricarEli-at:
Mishor A(liiininiiiiIiidustrial Park: Ma'alcEtiayiin lndustrial Park: Iininaiiu'clIndustrial Park; QiryiitArba Industrial Park; Hark;in Indiistrial
Park ncar Ari'cl:ziiidShiin'alndustrial Park i~ithe south of the Hcbron Mountains.
205. 1:ormoi-con this aspect. sec ShloiiioTzçzaiia, "WhitiJudea. Salilariaaiid Gaza." hh'uriv. 30 Novcmbcr 2001.The Ministry ofFinance, tlirough the Income Tax Commissioii, provides the resideiits of certain locales
in Israel with reductions in the payment of iilcoine tax at rates varyiiig froin five to twenty percent.
This benefit is not tied to the map of iiational priority areas as established by the coinmittee of
directors-general. TlieMiiiister of Fiilailce decides on the discouiits independently, tlirough ordiiiances
lie eiiacts stating the coinniuilities to receive beiiefits and the level of the reductioii. Most of the
settleineiitseiljoy a seveii percent incorne-tax reducti~n.~""
Diagram 5
Settlements in the WestBank,"by Level of Priority
ClassA
ClassB
No Priority
0%
Construction lsracl LandsEducation Industry Lahor and Incoinc
and Hoiising Adiiiinistration and Tradc Social AtTiiirs Tax
* Does not incliideEastJenisalcni.
** The "nopriority" category does not relate to transportationto school, which is entirely funded by the settlenients.
206. in tlicdi;igrains bclow, this bcncficis iiicludcd iindcrClass B prioi-ityarcüs. Diagram 6
Settlers in the WestBank,* by Level of Priority
0 Class A
' B3 ~~assB
a No Prioricy
Constructionlsracl LandsEducation Iiidustry Labor and Incoinc
and Hoiising Administration and Trade SocialAffairs Tax
* Does not iiiclude East Jcrusalcm.
** The "no priority" category does not relate to transto scliool, wliich is funded ebyithe settlements.
B. lncentives for the Local Authorities
A sigiiificaiitproportion of the services received from the state by Israeli citizens is provided tlirough
the local autliorities, i.e., the inunicipalities, local councils and regional councils. Tliese services extend
across diverse and varied fields. Some services are provided by the local authority on an independeiît
basis, whileothers are provided in cooperatioii witlivarious goverlimentmillistries. The former category
iiicludes, for example, the inaiiitenance of the water and sewage systems, the provision of cleaning
services, sanitation and veterinaiy supervisioii, the preparation of local oiitline plans aiid the grantiiig
of building perinits, the inainteiiance of public buildings, roads and public parks, and tlie collection of
municipal taxes. Seivices provided in cooperation with governmeiit ministries include the mainteiiaiice
of school buildiiigs, tlie operatioii of pre-school kindergarteiis, cultural activities, the maintenance of
inuseums, libraries and sports facilities, the operation of family health clinics, tlierapy and support for
distressed youtliaiid families, support for the religious councils, and the like.
The sources of fundiiig for these services may be divided into two categorie~.~~T 'he first includes the
local authority'sself-generated income: municipal taxes, levies, duties,payments froin local committees
(in the case of regioiial couiicils), payments for services provided to residents (engineering services,
veterinary supervision, use of libraries, medical services, etc.), school tuitioii fees, contribution by
resideiits to the costs of developmeiit works, aiid tlie like.
207. Foi.coiiiprcliciisi\~cdisc~issioiiof tlic tundirig of iocal govcrnincnt, scc ArIïi?oncin.yvslent.v?/'/liel.«r:ul
/Ii~fltoritie.(~in Hcbrcw) (Jcriisaloiii: FlorcsliçiiiicrPolicy Rcscarch Institutc, 1997).The second source of fiiiaiiciilgis tlie govemineilt, which transfersmoney to tlie local authorities by two
inethods. Tliefirst isparticipation in the direct financing of specific services, particularly by tlieMinistry
of Educatioii and tlie Ministry of Labor and Social Affairs (hereafter: earmarked contributions). Tlie
second foim is the provision of geiieral graiits by the Ministry of the Interior for the routine operations
of tlie local authority.The Miiiistry of the Interior also provides certain local autliorities witli additional
ud hoc grailts enabling tliein to meet "specialneeds" (immigrant absorption, encouraging settlemeiit by
young people, fiood coiitrol, reduciiig deficits, etc.) Altlioughvarious criteria exist for the allocation of
these grants, the Miiiistry of the Interior enjoys extensive discretion in tliis field.
One of the mechanisms used by the government to favor local authorities in tlie West Bank, in
cornparison to those inside Israel, is tlie chaniieling of money tlirougli the Settlement Division of
the World Zionist Organization (hereafter: tlie Division). As described above, the sole purpose of the
Division is to establish settlements in tlie territories occupied in 1967 and to suppoi-tthe continued
development of tliese settleinents. Most of the support funds granted by the Division are trailsferred to
the settlers via tlie local authorities, both within the framework of the regular budget and in the special
budget. The unique aspect of the Division is that on the one Iiand, the budget is drawn entirely from
the state budget, while on the other, the rules, procediires and laws applying to goveniment ministries -
above all, the Basic Law: TlieBudget - do iiotapply because tlie Division is iiot a governinent body.Tlie
Division's budget, which is transferred via the Ministry of Agric~lture,'~~ railged from NIS 153 million
to NIS 194inillioii per annuin during the period 1992-1998.'09
In 1999,the State Comptroller published a special report on the f~iiictioningof the Division. Accordinç
to this report, since the begiilning of 1997, the Division had expanded its areas of support for the
settlements beyoiid housing and agriculture, following a sirnilar inove by tlie Jewish Agency regarding
the cominunities it supported within Israel.The new spheres included social, educatioiial and communal
activities, assistance for establisliing public buildings. the provision of grants for entrepreneurs,
assistance for Jewish religious institutions, financing of transportation, the organizatioii of exliibitioiis,
and the like.According to tlie State Comptroller'sreport, tliisexpansion served as a vehicle to favor tlie
settlements relative to commuiiities inside Israel:
The Division lias expanded its activities and liabilities on the basis of tlie principle of equality in
assistance for communities on bot11sides of the Greeii Line. At the sanie time, however, the Division
interpreted the principle of equality in a flexible inaiiiier; in soine cases, it extended its activities
to splieres beyond lliose in wliich the Jewish Agency is active, and iii some cases it increased its
assistance beyoiid the assistance standards established by the Jewish Agency for communities it
assists within tlie Green Liiie. Thus, the Division created the favoring - which had not been decided
by the governinent - of the settlements in Judea, Samaria, Gaza and tlie Golan relative to other
coniinunitie~.~'~'
208. Until 1998.inoncy transfcrrcd to the Divisionwas rccordcd within tlic budget ofthc Ministiy ofAgriculture uiidcr the titlc "The Divisioil,"
witliout cxplainiiig wliat divisioii this \vas or for what pi~i-posesthis inoncy was dcvotcd (Arych Caspi. flu'riretz, 25 Juiic 1999). This is a
furthcrcxainplc of the gcncral lack of transparency that is typical of inany othcr aspects rclating to thc scitlcinto thissec the Iiiirod~~ction
rcpo1t).
209. St3tc C'oinptrollci-,Ketfoun Aur/i/ RegudiiyGovernmeni Assistuitce fir the Uei~elo~)/fihe iVciSettl~~iiien the J~rricu.
Soi17urir. uzo und GolrrnAiun.>(in Hcbrew) (Jcrusalcm, May 1999).
21O.Il~id1,20.Aiiotherreason for thispreferential treatmeiit, according to the StateComptroller's report,is tliat, "since
both governinent ministries and the Division are active in assistirig settlers in the same areas, and
sometiines for tlie same purposes, 'double support'is sometiines provided to the ~ettlers."~"
Tlie Miilistiy of the Interior's Local Autliorities Audit Division publislies an annual report presenting
the sumiiiary of fiiiancialdata for al1the local authorities in Israel and the settleinents. We shall present
below databased on the infoimation included in the inost recent report, for the year 2000.2'2These data
provide a breakdown of the source of income of (Israeli) local autliorities in the West Bank iiitliat year,
and compare these with the parallel data for local authorities inside Israel. It should be empliasized that
tlie al-Aqsa intifada did not iiicrease the level of government funding for local authorities in the West
Bank in 2000 - the budgets for these autliorities were approved in 1999,before tliese everitserupted.
Before examiiiing the data, it is worth clarifying a number of methodological issues. Firstly, since the
size of the populatioii varies from place to place, which has a crucial impact on the level of budgets,
the data below are prese~ltedon a per capita basis, and not iii terins of tlie total allocatioil for the
authorily. Secondly,the data presented here relate to the routine budget of the authorities (the "regular
budget" in accounting terms), and do noi include iilcome in the "special budget" earmarked for
one-time investmeilts (usually physical iiifrastructure), because there is iio way to compare this income
for different local autliorities for aily given year. Thirdly, the analysis below does ilot relate to the
fiiiancial data for tlie inunicipalities, because there are only two local aiithorities iii the West Bank
witli this status (Ma'aleAdunîmim and Ari'e1),2's 3o that a comparison with iiational averages could be
unrepresentative.
A review of Tables 4 and 5, and of tlie accompanyinç diagrams, shows tliat the per capita finailcial
transfers of the governinent to local authorities in the West Bank are significantly liiglier thaii the
average for local autlioritiesinside Israel. The discrepancy between thetwo is particularly evideiitiiithe
case of general graiits, wliich are particularly important from tlie perspective of the local authorities;
uiilike earinarked contributions, tlie autliorities are free to use the grant moneys at their discretion,
although the entire budget is subject to the approval of the local authority'scouilcil and the Ministry of
the Interior.
The level of general grants provided by tlie government for local councils iii the West Bank in 2000
averaged NIS 2,224 perresident, compared with ailaverage of NIS 1,336per sesident for local councils
iilIsrael, i.e., sixty-fivepercent more. Only in four of the fifteeillocal councils in the WestBank was the
level ofgrants per resident lower than the Israeli average, while in fiveof the coui~cilstlie levelwas over
one hundred percent inore than the average. The discrepancy in favor of the local councils in the West
Bank may also be seeii in the context of earmarked contributions by government ministries. While the
average for such investment iii local councils in Israel is NIS 1,100per resident, the investineiit in tlie
local councils in the WestBank was almost NIS 1,500per resideiit, i.e., thirty-six percent more.
It is wortli notiiig tliat tlie prefereiitial status enjoyed by the local councils in the West Bank in teims
of the transfer of governinent fuiids was not reflected iii any decrease in the residents' participation
212.Ministryof LhcIiiicrioi;LocalAuihoriiics Aiidii Divisiori.Report oj'Coi71rolledFinancial Bcitaf1000.Report No.lioritie.~
6 (in Hcbi.c\+)(Jcriisalciii. Scptcnibcr 2001).
213.At the ciid01'1001.thc scltlcinciii of Bctor Illit also 1-cccivcdthe statiis «Taiiiuiiicipality.in the couiicil's income relative to the average iii Israel. One of the reasons for tliis is tlie high
ecoiioinic capability that is cliaracteristic, on average, of tlie local councils in the West Bank relative
to tliose in Israel. Thus, average self-generated incoine for tlie local authorities in tlie WestBank totals
approxiniately NIS 2,300 per resideiit, while the average figure inside Israel is approximately NIS 1,700
per resident. The coiiîbiilatioi~of the preferential treatinent by the goverilmelit and the higlier rate of
participation by residents yields a total income basket that is forty-five percent higher in the WestBank
tlian inside Israel.
Table 4
Per-capita Income in West Bank Local Councils (in NIS)
- - - - - - -- - - - -
Name of Council Self-generated Earmarked General Grants Total Per Capita
Incorne Contributions Incorne
- " * - -- ---" -- -" - - - --- ---- - --- -- ---- - --
Oranit 3,010 983 5,217
- 1.22-4
1,184 5,874
- --A - 1,712
-- -- - - 1,767 1,860 __ 6,325
Efrat -- 1,971 1,508 ---- - 1,7-3 - --- 5,221
Bet--l - -- - - - - 2,840 - -- _ --- 6,_-8 --
BetArye 2,761 1,344 2,198 6,304
Retar Illit 1,073 389 1,283 2,744
Giv'at Ze'ev 1,656 1,147 4,049
- 1,232 _-
Har Adar 3,806 664 2,015 6,486
Modi'in Illit 1,334 735 1,063 3,133
Ma'ale Efrayim 2,497
- --- - -
Iinmanu'el 1,174
--- --
Qeduinim 2,739
Qiryat Arba 1,888
Qanie Sliomeron 2,081
Average Incorne
in West Bank 2,266 1,489 2,224 5,995
Local Councils
Average lncome
in Local Councils 1,683 1,100 1,336 4,119
in Israel Diagram 7
Per-capitaIncome in Local Councils (inNIS)
[UJAvcragcin WestBank
mAvciage in Isracl
Self-gencrated IiicomeEannarkcd Contributons Gcncral Grants
Thesituationregardiiigtheregioiial couiicilsis similar, thouglinot identical, totliat ofthe localcouncils.
111the case of regional couiicils, tlie discrepancy in general graiitsis eveii more pronouilced than in tlie
case of the local councils. While the average for regioiial couiicils inside Israel is approximately NIS
1,500 per resideiit, theaverage for the West Bank is approximately NIS 4,000 - approximately 165
percent more. In al1six regional councils iiithe WestBank, tlie level of grants is higher than tlie Israeli
average;the liighestlevel is for Megillot Regioiial Council,wliere grants amount to approximatelyNIS
7,500 perresident. Iiiterms of earmarked contributions fromgovernnient ministries, the discrepancy is
approximatelysixty-fivepercent in favor of tlie regional councils in tlie WestBank.
Regarding self-generatedincome,tliesituation inthe regionalcouncils differssomewliatfromthat in the
local couiicils.The coiitributionof resideiitsof regional councils in Israel to the iiicomeof the council is
approximatelyfiftyperceiit liigheron average than that of the residents of regioiial couiicils in theWest
Bank. Nevertheless, the enorinous discrepancy in goverilmenttransfers in favor of the councils in the
WestBank means that tlie total basketof iiicomeper resideiit is still approxirnatelyforty percent higher
on averagei~itliesecouiicilsthaii iiithe regioiial councilsinside Israel. Table 5
Per-capita Income in the WestBank Regional Councils (in NIS)
-
Name of the Ëarmarked General Grants Per Capita
Council lncome Contributions Income
-- -. -- - - ---- -
2,618 4,078 4,474 11,171
- - - -
Gush Ezyon 1,733 2,203 2,807 6,785
Megillot
Mate Binyamin
Mt. Hebroil
Sliomeron
AverageIncome in
West Bank 2,207 3,232 4,006 9,452
Regional Councils
AverageIncome in
Regional Councils 3,333 1,952 1,498 6,783
Diagram 8
Per-capitaIncome in Regional Councils (in NIS)
Avciagc in WcstBank
1 Avcragcin lsracl
Sclf-gcncratcdIncoiEarinarkcdContributonGcncral GrantsThe extent of the discrepancies inthe scope of iiloneystransferred to local authorities by tliegovenlment
inay be examiriedby coniparing transfers to specific local autl-ioritieson either side of the Green Line.
Toensure that such a comparison is fair and indicative, care was taken to compare local authorities with
siinilar profiles in terms of pop~ilationsize, distance from the center of the country, and socioeconomic
status of thresiderits.?'Vhe results of this coinparison are presented in Table 6 below.
Table 6
Cornparisonbetween Local Authoritiesin the West Bankand in Israel (inNIS)
- -- -. -
Nanie of Number of Socio- Govt. Name of Number Socio- Govt.
Local Residents economic Grant per Local of economic Grant per
Authority Level Resident* Authority Residents Level Resident*
R.C.** 4,400 6 8,550 R.C. 4,900 7 1,710
Arvot Ramat
Hayardeil Hanegev
R.C. 4,300 5 8,240 R.C. 4,300 5 4,740
Mt.Hebron Yoav
R.C. 26,300 5 4,380 R.C. 29,300 5 2,790
Mate Mate
Binyamin Yehuda
L.C.** 2,700 6 4,860 L.C. 2,700 6 3,620
Qeduinim Yavni'el
L.C. 6,300 7 3,250 L.C. 6,400 6 2,110
Efrat BiîeiAyish
L.C. 5,700 4 5,960 L.C. Mizpe 5,300 3 4,180
QiryatArba Rainon
L.C. 4,600 9 2,900 L.C.Ramat 4,600 9 1,570
Alfe Yeshai
Menashe
* Thcsefiguresincludeboth theearmarkedcontributionsandgeneralgrants.
** R.C.= RegionalCouncil;L.C. = LocalCouncil
A study undertaken by the Adva Center offers an extensive picture of tlie systein used for financing the
activities of Jewish local authorities in tlie West Bank, Gaza Strip and Golan Heiglits (as a single unit)
during the 1990s(1990-1999).2'5Thestudy compares data for this group both as regards average figures
for Israel and forspecial groups of authorities, such asdevelopment towns. Although tl~isstudy includes
additional authorities beyond tllose iiicluded in that presented above, its conclusioi~sare essentially
si~nilar.~'"
s rcflcctcd inihc rankiiig of tlic cconoinic capability of thc rcsidcnts of cach authority (oii a risiiig scalc froin 1to 10)as
crilculatçdby the Ccntr;il Burcüii of Statistics. coiiibiiiiiigvarious data such as iiicome. sizc of Iioiisi~igunits, nuinber of vchiclcs pcr fainily.
CIC.
215.Adva Cciitcr. Governinent~f rlie l.srueliSc~tleincn/inJudeu. Suinurio,Gazciand theGoltrnHeights in ~he1990,s.
216.Tlicadditional autlioritics arc 1-Iof'AzzaRcgioiialCouncil. Ramat Hagolaii Regional Coiiiicil,aiid Karzriii Local Coiincil. Table 7
Multi-yearAverageof MunicipalIncome, 1990-1999 (in NIS)*
-- - - -
TotalBudget Self-generated Government
- - -- Income Funding***
West Bank, Gaza
and Golan
Development
Towns**
Israel
* Thcsefigures relateto thethreetypesof localcouncils,andare updated basedon thepriceindexfortheyear
2000.
** This group is coinposeodftwenty-fivecon~inunitiedsefinedas"developingsettleinentsb"ytheCentralBureau
of Statistics.
*** Thesefigurcsincludebothearmarkedcontributiona sndgeneralgrants.
The researcli shows that througliout the 1990s, the Israeli governinelit favored the local autliorities in
the Occupied Territories and in the GolaiiHeiglits iii comparisonto local authorities iiiIsrael. Per capita
fiilancial transfers were 150 percent higher. This table shows that these transfers were approximately
sixty percent higlier than tliose to the developmeiit towns, which ostensibly fornl part of the areas
to wliich the goverilment seeks to attract resideiits (see discussion of the national priority areas map
above).As a result of tlie considerable government contributioii, the residents of local authorities in tlie
Occupied Territories were required to indepeildently hnd (tlirough self-generated iilcoiiie)tweiity-five
percent less tliaa the national average, and ten percent less than the average for development towns. In
total, the per capita budget available to the local autliorities in the Occupied Territories was inore tliaii
forty percent higher than the natioilal average throughout the 1990s, and approximately thirty percent
Iiigherthan tlie average for tlie development towiis. c". 1'
?,;,P...,-,f&p. .,&2 %:.#2:J.<i,
The Planning System
The planning system in tlieWestBank, which is iinplemeiitedby the Civil Administration, liasdecisive
effect over the map of the West Bank. Like otlierinechanisms establislied in the Occupied Territories,
the planning systein operates along two separate tracks - one for Jews and tlie otlier for Palestinians.
While the systemworks vigorously to establisliand expandsettlements, it alsoacts diligently topreveiit
the expansionof Palestinian towns and villages.
Tlie inherent importance of any planning system is tliis: it is charged with deterinining tlie use of the
land available toa giveii public in accordance with the needs, perceptions and interests of that public
as a wliole,and of tlie individuals that composethat public. The document detailingthe decisions made
by this systemin any given locale is tlieoutline plan, wliichdetemiines tlie size, locatioii andzoiiingof
each unit ofland (housiiig,industry,cominerce, public institutions,road, open public area, and the like).
Tlie Israeli planniiigsystem in tlieWestBank utilized its power to advance the political interests of the
Israeli governrneiitiiipower rather than to benefittlielocal population.
111 legal terms,tlieplanniiig systein in the WestBaiik operates on the basis of the Jordanian legislation
applying in the area at the tiine of occupation, principallytlie City, Villageand Building Planning Law,
No. 79, adopted in 1966.217 This law defines three types of outliile plan, each subject to tlie next in a
hierarcliical forin and with an ascending level of detail: a regioiial outline plan, a general-local outline
plan, and a detailed plan. Tliese plans are supposed to be prepared and approved by an iiistitutional
system reflecting eacli level: the Supreme Planning Co~iiicil,the district planning committees and
tlie local planniug committees, respecti~ely.~'~ For tlie purposes of the law, the village couilcils and
municipalities fuilction as local planning boards, as is also customary in I~rael.~'~ Tlie law also
establisliesvarious provisions relating to the process of consultation with al1the relevant bodies when
preparing the outlineplans, the publication of these plans and deposition for public review, the heariiig
of objections, and tlie like.
The Jordanian planning law was changed by Israel by means of Military Order No. 418, issued in
1971 and amended several tiines over the year~.?~T ~his order introduced far-reaching changes in the
planning system in tlie West Baiik.These changesreflectedalmost exclusively theiilterestsof tlielsraeli
admiiiistratioi~andthe settlers,while miiiiinizingPalestilliailrepresentation on tlieplaiiniiigcominittees
and Palestinian influence inplanning matters.
Withthe signiiigof the iiiteriinaccords in 1995,and followingthe redeployineiit of the IDF in the years
that followed, planning powers in Areas A and B were transfen-edto the Palestinian Authority. The
217.Plonrriiig.Bliildiiigorrd1,ondI.oiu.~.pp. 43- 158.
218. In thc case of towrisor sinall villages, the law pcrinits the uiiification of the two latter slagcs, in the forin ofa "gcncral-dctailcd outlinc
plan" (City.llageand Building PlaniiiiigLaw, No. 79.Scctioii 22).
219. For a coinparison oflic laws and institutional striiciiii-cof ilic planriiiig systciii insidc Isracl. sec Dcnnis Goltoinan, /n/roJuc~ion
Pluiiiiiirgond ls'iiil(lir~Lgniiz~(iii Hcbrew) (Jciusalcin: Hcbrcw Uiiivcrsity of Jcrusalcin, 2000).
220. Order Conccniing thc City, Village and Building Plarining Law (Jodca and Samaria) (No. 418). 57iiPkinrzing.Birildingund
/,u~~(~/,(IpJp,. 239-250.plaiiningpowers relatiiig toArea C, which since 2000 accoiiiitsfor some sixtypercent ofthe WestBank,
were iiot affected. Although at present a very small percentage of tlie Palestinian population in the West
Bank lives in Area C, the military planning system continues to exert a direct influence on tlie lives of
teiis of tliousands of Palestiniaiis, mainly inArea B, aiid indirectly on al1the Palestiiiian residents of tlie
WestBaiik.
A. Restriction of Construction in Palestinian Communities
One of the principal changes that Israel made iii tlie Jordanian law was the transfer of al1the powers
graiited in the Jordaiiiaii law to the Minister of the Iiiterior to the Coinmander of IDF Forces in tlie
Regi~n.'~'Accordingly, most of the Jordanian and Palestinian officials were replaced by Israelis, niost
of whoin were IDF officials or represeiitatives of the settlers. Tlie Supreme Planning Council became a
unit of the Civil Admiiiistratioii under the direct responsibility of the Officer for Interna1Affairs.
In addition, Israel elimiiiated tliedistrict planning corninittees (which were responsible forpreparing the
local-geiieraloutline plans) and the planiiingauthorities of tlievillage councils (in tliecontext of detailed
planning). These authorities were transfei-redto the Central Plaiining Bureau, which is a techiiical and
professioiial body operating alongside the Supreme Planning Council. Accordiiigly, tlie only powers
coiitiniiing to rest with Palestiiiiaiis were the plaiuiing authorities of the municipal councils (for the
purpose of detailed plaiis); even these powers were curtailed by various rnean~.~~~
Over tlieyears, the main tool used by Israelto restrict building by the Palestiiiian population outside tlie
borders of tlie municipalities was siinply to refrain Froinplanning. Like ils Jordaiiian predecessor, the
Israeli adiniiiistration has refrained from prepariiig updated regioiial outline plans for the West Baiik.
As a result, uiitil tlie transfer of autliority to the Palestiiiian Authority (and to this day, in Area C), two
regional plans prepared in tlie 1940sby the British Mandate contiiiue to apply - one in the nortli of tlie
WestBank aiid tlie otlier in the so~th.~~;
The Mandatory outline plaiis were already a completely unreasonable basis for urban planning iii the
initial years of the occupation, and tliey are even inore so t~day."~One of the principal reasons for this
is tlie discrepancy, wliiclihas widened over tlie years, betweeii the size of tliepopulation on wliiclithe
Maiidatory plans were based aiid the actual size of the population. Areas in wliiclithese plans peimitted
building, geiierally arouiid existing built-up areas, were quickly exploited, while most of the area of
the West Bank continued to be zoned as "agricultural areas" or "nature reserves," where building is
prohibited.
The British outline plans also do not meet the planning iieeds of the Palestinian population because tlie
plaiis are divided iiitojust four land uses: agriculture, developnieiit, nature reserve and coastal reserve.
This division ignores iluinerous land uses that are iiicluded, for example, in the district outline plans
221.Ihid.. Section 2(1).
222. Ibid., Scciioii 2(2)(3).
223. Jcrusalciii District Outlinc llcgional PKJ15i,pproved in 1942,and Sumoiin RegioilcrlPloi7ningSclienieSIS, dcpositcd in
1945but wbich ncvcr rcçcivcd final opproval.
224.For grcatcr dctail on this niattci; sec o planning opinion prcparcd by 13iinkoiii.l/illnge.sin Areu C CViihouiOirllinePluns (iii Hcbrcw),
Planning Opinion. .luiic2001 (~iirp~ihlishcd).applying iiisideIsrael (industrial zone, tourisin area, quarry area, etc.) Moreover, these plans determine
Ihat tlie ininiinum area for construction of a single housiiig unit is 1,000 square meters, without aiiy
possibility to subdivide this area into smaller units (parcellation).
In tlie early 1990s, the Central Planning Bureau of the Civil Administration prepared Special Partial
Outline Plans for some four huiidred villages in the West Bank. These plans were supposed to fil1tlie
role of tlie detailed plans reqiiired by Jordanian law. However, instead of permitting tlie development
of the villages, these plans effectively constitiited demarcation plans. In preparing the plaiis, aerial
photographs were taken of each village, and a schematic line was tlien added around the settled area.
Coilshuction was prohibited on land outside tliis line. According to the perception reflected in these
demarcation plans, construction in Palestinian villages is supposed to take place by tlie "infill" inetliod,
Le., the filling of vacant areas withiil the deinarcated area through high-rise construction and a gradua1
increase in the population de~isity.**~
Applications filed in the past by Palestinian residents to the CivilAdministration (and still filed, in the
case of Area C) for building on private land outside the area of tliese plails are almost always rejected.
The reasoiisfor tlierejections are based both on tliedemarcation plans (tlieland is outside the plan area)
and 011 the Mandatory outline plans (the area is zoned for agriculture or a nature reserve). For example,
between 1996and 1999,the CivilAdministration issuedjust seveiity-ilinebuilding penilit~.~*T ~lie Civil
Administration issues demolition orders against houses built without a permit.*"
In soine parts of the West Bank, particularly along the Western Hills Strip, the borders of Areas A or
B are almost identical to tlie border of built-up area of Palestiiiiaii cominunities, Le., the border of the
demarcationplans (see the niap attached to this report, as well as Chapter Seveii below). Although most
of tlieresidents inthese areas live in AreasA and B, most of the available land for building on the edges
of the villages lieswithin Area C. Accordingly, although planning and building powers in Areas A and
B has ostensibly been transferred to tlie Palestinian Authority, thetransfer of power is meaiiingless in a
largeproportion of the cases.
Tlie use of theoutline plans as a tool for restricting Palestinian building, and for promotiiig the buildiiig
of the settlements, is also very widespread in East Jesusalem, despite the differeiices in the legal and
instit~itionalmechanisin imposed on tliis area in coniparison with the remainder of the West Bank.
Iiiimediatelyafter tlie annexation of East Jerusalein, in 1967,and contraiy to the remainder of the West
Bank, al1the Jordaniaii outline plaiis applying in tlie area were iiullified, and a planning vacuum was
created that has only gradually been filled. During the first decade following tlie annexation, ad hoc
building permits were issued in extremely restricted areas of the ~ity.'~'
In llieearly 1980s,tlie Jenisalein Municipality decided to prepare an outline plan for al1tliePalestinian
iieigliborlioodsof East Jerusalem. Most of the plans have now been completed; a rninority are still inthe
process ofpreparalion and approval. The most striking feature of these outline plans is the extraordinary
225. B'Tsclcin,Beinolirhing Pe. ).I1.
226.Aiiincsty Intcrnntioiial.Dei17olitionnnd Di.q>o.r,sessioi77':1~Bestr.uçtionqf'Pa.s.DE 1510591999 (Dcccnibcr 1999).
277. For dctailsof llicnuiiibcr ofliouscs dciiihis contcxt, sec B'Tsclcin.Derrrlgeaçe;Aiiincsty Inlcinatioiial, Berrindi/ior7
Dis]>ossession.
228. Ir Slialciii.Err.v.tJeniPloi7iiingSifzfcrtioi7p,. 5.amount of land (approximately foi-typercent) defined as "opeii landscape," in whicli any form of
development is proliibited. The plans approved through the end of 1999show tliat only eleveii percent
of the area of East Jerusalem exclzldingthe expropriated land is available to the Palestinian population
for building. As was the case in the remainder of the WestBank in the context of the demarcation plans,
this coiisti-uctioiiis allowed mainly witliin existing built-up area~."~
B. The Planning System for the Settlements
The saine legal aiid institutional system respoiisible for planning in Palestiiiiari areas is also respoiisible
for planiiing in tlie settleme~its.However, tlie criteria applied in these two cases are diametrically
opposed, In institutional terms, the outliiie plans for the settlements are discussed and approved by the
Sub-Comiilittee for Settlemeiit, which is one of several subcominittees operating under tlie auspices of
the Supreme Planning Couiicil.
The order tliat changed tlie Jordaiiiaii law empowered the Commander of IDF Forces in the Region to
issue orders appoiiitiiig"special planning cominittees" for defined areas "wliich sliallpossess thepowers
of the local planning cominittee. ..[and] also tlie powers of the district planning orn ni nit tee."T ^his
provision was used by tlie Israeli administration to define the Jewish local authorities in the WestBank
as special plaiining comiilittees, empowered to prepare and submit (to the Supreme Planning Council)
detailed outline plaiis and local-general outline plaiis, aiid to grant building permits to residents oii the
basis of these plaiis.Not a single Palestinian village council lias ever been defiiied as a special planning
committee for the piirpose of this law.
The municipal boundaries, i.e., area ofjurisdiction, of each Jewish local autliority, as deteniiined in the
orders issued by the coinmander of IDF forces, fumtioii as tlie "planning area"foreach special planning
committee, and the comn~ittee'sauthority encoinpasses this area. Ili tlie case of the regional councils,
tlie planning area is confined to tlie "areas of the coinmuiiities" iiicluded in these couilcils, i.e., it does
not iilcludethe reserves of land witliin thearea of the couiicilthat have not been attacliedto any specific
settlement (for further discussion, see Chapter Seven below).
The Jewisli local autliorities, in their functioii as the local and district planning coinmittees for the
settlements, operate in coordination and cooperation with tlie various iiistitutioiis of the military and
goveriimental systein, in a constant process of expansion and growth. The first condition for submission
of outline plaiis for approval by the Supreme Planning Council is that the planned area lies witliintlie
area ofjurisdiction of the local autliority.Ifthis is iiotthe case, the CivilAdministration acts torearrange
the administrative borders of the local autliorities in order to adapt these to the new outlii~eplan. For
exarnple, tlie StateAttorney's Office described the manner in which the latest local outline plan for the
settlement of Ma'aleAduinmim (against wliich a petition was filed in tlie High Court) was brought for
approval:
At the beginiling of 1990,the Iieadof Ma'aleAdummim Couiicil contacted the CivilAdministration
and asked lo expaiid the area ofjurisdiction of the commuiiity by some 18,000 additional dunain.. .
720 Ibrd
230 Scction 2A of tlicOrdci Rcgaidiiig ilic City.Villagc aiid BiiildiiigPlaiiningLan Tlie areas Ma'aleAduinmiin asked to attach to its area of jurisdiction were at this time included in
tlie area of jurisdiction of Mate Biiiyamin Regional Council and Gush Ezyon Regional Council.. .
011 16 October 1991, after work undertaken by tlie headquarters on this inatter, Respondent No. 1
[the Coinmander of IDF Forces in the West Bank] signed regulations regarding the local councils
(replacement of map). .. in accordance with which the area of jurisdiction of the conimunity was
expanded by some 13,500d~nam.~~'
Afurtherdifficultyresults from the establishment of the settlements in areas defined as agricultural areas
or nature reserves in the Mandatory regional outline plans. This difficulty is overcome by ensuring tliat
almost al1the general local outline plans for the settlements are filedwith the Supreine Planning Council
as an "amendment to Regioiial Outline Plan S-15 or RJ-5." This allows the military planning systein
to authorize the establishmeiît of new settlements and tlie expansion of existiiig oiies, on the one l~and,
without waiving the Mandatory outline plans, which are effectively used to restrict the expansion of
Palestinian communities, on the other l-iand.
There is nothing improper per .seabout tlie flexibility shown by the planning system, botli in terms of
amending the areas ofjurisdiction of the Jewish local authorities and in terms of changing tliezoning of
land in tliesettlements as establislied in the Mandatory outline plans. What is irbproper, however, is the
contrast between this flexibility and Israel'sstrictenforceinent ofthe letter of the lawregarding planning
and developinent in Palestinian communities, wliere Israel does not liesitate to misuse the planning
system to serve its purposes.
The Jewish local authorities prepare their outlineplaiis in cooperation with the settliiigbody responsible
for establishiag the settleiuents - the Ministry ofHousing and Construction orthe Settlement Division of
the WorldZionist Organization; these bodies continue to accompany tlie settlement after establishment.
One of these two bodies appears in each plan under the title "subrnitter of tlie plan" as the body
empowered by the Custodian for Governinent Property to plan the land, and/or uiider tlie title
"impleinenter."
Once the plan lias beeii submitted to the Sub-Committee for Settleinent in the Supreme Planning
Council, and once this body provides preliininary approval, notification thereof appears in tlie press
(including theArabic-Ianguage press in the Occupied Territories), andthe plans are deposited for p~iblic
review fora period of several weeks. Persom wliobelieve that tlieyare injured by decisioiis taken in tlie
plan, including Palestiilian residents, are eiititledto subinit objections to the objections committee of tlie
Supreine Planning Coiincil.
In practice, the ability of Palestinian residents to object eflectivelyto tlieoutline plans for tliesettlements
is extreinely liinited. The inaiil reason for this is tliat most of the grounds that might lead tlieobjections
corninittee toaccept an objection to the outline plan for a settlement are already resolved before the plan
isdeposited forpublic review. Tliequestion of landownership, for example, is settled during the process
of seizure of land. Even if a Palestinian resident firstleanis that his land is intended for the expansion
of a settlement when the outline plan is published, he will almost certainly have missed the date for
subinission of an appeal to the appeals committee against tliisdecision (as far as the land isconceriied).
231.i'ziiiigrapli9 of tlic 1-cspoiisc01'thc Attoi1-1CJi125198.:Ihd/Il-:lziz A.luhavcrdel al1:Coii7ii7uirJ'IDFForce.s
in Ju(Jeuu~it/Sainel(11.Similarly,any potential conflict between the outline plan for tlie settlement and the development needs
and aspirations of the Palestinian cominunities is "resolved" by the military planning systemtl~rouglithe
demarcation plans approved by Israel in the 1990s,as well as by the restrictive land-zoiling provisions
established in the Mandatory outline plans. The ability of Palestinian residents to object effectively
to the outline plans for the settleinents is also influenced by technical considerations, such as the
difficulties they encouilter iil reaching the Civil Administration offices to review the outline plans,
difficulties in accessing tlie land covered by the plan in order to prepare an objection, the high costs
involved in filing an objection, difficulties in participating effectively in a hearing that takes place in
Hebrew, and so on. a+:k^-Cht *-Xt %"
An Analysis of the Map of the West Bank
The attached map oftlieWestBank reflects the radical transformationof tlie area tliathas resulted from
thirty-five years of Ssraelioccupatio~i:~~t' he establishment of dozens of settlemeiits that extend over
enonnous areas and are coiiiiected to each other, aiid to Israel, by nieans of an extensive network of
roads. The character of the settlements as Israeli enclaves, separatedfrom and closed to the Palestinian
population, are an important source of the infriiigementof the Palestinians'human rights.
To analyze the geographical dispersion of the settlements and tlieir impact on Palestiiiiaiiresidents, tlie
report divides the West Bank into four areas (see Map 2). Stshould be empliasized that tliis division
is purely to facilitate the discussion, and does not have any legal or bureaucratic manifestation. Each
area includes settleinentstliat sliare certain similaritiesin terms of topograpliy,proxiniity to Palestiiiiaii
coinmuiiitiesand main roads, economic infrasti-ucture,the compositioiiof the population, distancefrom
the GreeiiLiiie,and the like. Tliese characteristics in turn influencethe manner and degree in wliiclitlie
liumaiirights of the Palestiriianpopulation are violated.13'
Tliree of the four areas are longitudinal strips of land stretcliingfrom nortli to soutli across the West
Bank, while excludingtlie Jerusalem area, wliicliconstitutes a separate group:
TheEasterrîStrip - includes tlie Jordan Valley andthe northeni shores of the Dead Sea (outside the
Green Line),as well as the easteni slopes of the mouiitaiii range that i-~ialong the entire West Bank
froin iiorthto soutli.
The MounrninStrip - the area on or adjacent to the peaks of the inountaiii range. This area is also
known as tliewatershed line or the inouiitain-range area.
The WesternHills Strip - includes the western slopes of the inountaiii range, and extends to the
Green Line to tliewest.
TheJei-tisaleniMetropolis - tliisarea extends across a wideradius aro-undWestJerusalein. Although
iiipurely geograpliicaltei-insthis area liesmainly inthe Mountain Strip, it liasunique characteristics that
demand separateattention.
Areas Marked on the Map and Sources of Information
Built-up area: The built-up areas in the settleinentsaiid Palestiniancominunities (see Map 1) include
al1areas in wliich any developmeiithas been carried out, iiicludiiigresidential construction, commerce,
industryaiidagricultural buildings(liereafter:developedareas),but excludingopen agriculturalareas.The
main sourceof infom-iationpresented in tliis sectionof the inap is a map at a scale of 1:150,000produced
by the U.S. StateDepartinent followingthe iinplementation of the Sharmel-Slieilchagreement,based oii
237. B'Tsclcin,.Se/tlcrsr/Ire M'erlRu-rBuil/-t~pAreav und Land Re.sers ay 2001).
733. Morcover. since any aiialytical classificatioii is by dcfinitioii bascd on thc principlc of gciicrülizatioii,it slio~ildiiot bc infcrrcd tliat cvcry
scttlcinciit iiicludcdin a givcn catcgory ncccss;irily sharcs al1the charactcristics ofihat group: inccrtaiii rcspccts, a particular scttlcnlcnt iiione
yroiip inay sliarctlic characicristics of a diffcrcnt groiip.a satellitephotoçraph of the WestBank from November 2000.Another source of ilifonnation comesfrom
the Peace Now data regarding outposts established oves the past two years, as well as infonnation fi-oin
ARIJ(Applied Researcli InstituteJentsalem) conceniing expansioiiundertaken tlirougliApril2001 .234
Municipalboundaries: The inunicipal boundary of each settlement is the area of authority of the local
committee or council, according to the status of each settlement (see Chapter Four). This area also
coiistitutesthe planning zoneof the special planning committees - in other words, tliis is the area withiii
whiclithe (Jewish) localauthoritiesarepeimittedto submitanoutliiieplan for the approvalofthe Supreme
PlanningCouncil, and to issuebuilding permits for the expansionof tlie settlement (see Chapter Six).
Iiimost cases, this iilforniation is based oiithe map of the area ofjurisdiction/area of cominunity of each
settlemeiit accoinpanyiiig the iiiilitary order signed by the Conimander of IDF Forces in the WestBank
declaring the establisliiiieiit of the settlement or the revision of its boundaries (see Map 3). For some
settlements, tliemunicipal boundaries shown are based on the boundaries appearing in the outliiieplans
for each settlement. The outline plans generally relate to the entire municipal area of each settlement.
Tliere may, however, be cases iii which the inunicipal boundaries include areas for whicli no planning
lias yet been cairied out, aiid whicli extend beyond the boundary sliown on this map.
One of tlie reasoiis for the lack of uniforniity in the sources of iiiformation relates to the dif7iculties
B'Tselemexperienced in obtaiiiing tlierelevant maps from the Civil Administration (see the discussion
in the Jiitroduction). A further reason is that, for some settleineiits, no map has yet been drawn
demarcating the revised area of settlement, so tliat the only existing boundary is that included in
the outliiie plail of tlie settleinent. Regarding four settlements, B'Tselein lias been unable to obtaiii
informatioiirelating to the municipal b~undaries.~'~
Regional councils: The area of the regional councils include the areas of jurisdiction of the regional
councils that lie beyond the municipal boundaries of a specific settlement (see Map 3). These areas
include al1the land Israel lias seized control of during the years of occupation (with the exception of
land included in Areas A and B), according to the methods described in Chapter Three. This land is
intended to serve as reserves for the future expansion of the settlements or to establish iiew industrial
zones along the lines of those established in recent years. As iioted in Chapter Four, altliough this land
has been declared state land, parts of it are currently used by Palestinians for faiming or grazing.
As inthe case of the municipal boundaries of each settlement, the source of iiiformation regardiiig tliese
boundaries is tlieinaps accoinpanyiiig tlie military orders declaring the establishment of each regional
council. The maps sliowing the area ofjurisdiction of the regioiial councils as fonvarded to B'Tselem
by tlie Civil Administration are the original inaps issued on the declaration of the establishment of
each couiicil.According to the Civil Administratioii, "the Civil Administration does not currently have
updated maps for the regional authorities in Judea and Samaria."'3"o represent the updated situation,
as far as possible, we deleted from the map shown in tliis report areas that appear in the original inaps
witliintliearea ofjurisdiction of the regional couiicilsbut which have been transferred to the Palestinian
A~ithorityin the fiamework of the OsloAccords.
234. Sec tlic Wcbsitcof I'cacc Now (wu~w.pcaccnow.org.il)and the WcbsitcofAKlJ (\vwrv.arij.org).
235.Tlicsc sctilcincnts ai-cTclcin,Adiira. Pcnc Hcvcrand HarAdaii
236. Lciicr of31 Dccciiibcr 2001 ïroiii Civil AdiniiiislratioiiSpokcspcrson Caplain Pctcr Lcrncof the Isracl Rcligious
Aciion Cciitcr. which pi-ovidcdlcgal co~irisclto B'Tsclciii.AreasA, B, C:The inap also marks tlie division of powers between Israel and the Palestinian Authority
following the impleineiitation of the Oslo Accords sigiîed between 1993 and 2000: Area A, in which
the Palestinian Authority is responsible for most interna1affairs, iiicluding security and building; Area
B, wliere the IDF liolds security control and is entitled to enter freely, while the Palestinian Authority
holds control in civilian matters; Area C, wliere Israel coiitrols both security matters and planning and
construction (see Map 5). Table 8 below suinmarizes the division of the West Bank into tliese three
areas, as determiliedfollowing the second redeployment, in March 2000, following tlie Sliarmel-Slieikh
Agreement.
Table 8
West BankRegions according to the OsloAccords*
-- - - -- -- ---
- - Tho Area of t-e ---t Bank (by percen-age) **
1,008 - - 18.2 -
Area B 1,207 21.8
Area C - - 3,32- -- --- - - 60
~otal - -- - 5--38 --- - - -- - -- --O0 - -
* After the second redeployment (March 2000) following the Sharni el-Sheikh agreement.
** The area of the West Bank referred to here does not include East Jerusalein, no inan'sland and the
proportionale area of the Dead Sea (based on the Sharm el-Sheikh agreement).
Source:ARIJ, www.ari.1 .org
A. The Eastern Strip
The Eastern Strip iiicludes the Jordan Valley and the northem Dead Sea coast, as well as the easteni
slopes of the inouiitaiiiridge and part of the Judean Desert. Tliis area is bordered by Jordan to tlie east,
the Green Line in the vicinity of Bet Slîe'aiito tlie nortli, and the Green Line iiorth of 'EinGedito tlie
south.The westernbouiidaryof this area is less sharply definedthan the above,but may be characterized
as tliepoint wherethe arid cliniate typical of this strip gives way to the semi-arid climate, at or around
the four-hundred-meter altitude le~el.~~'
The geograpliical conditions in this area are extreine, characterized by higli temperatiires, sparse
precipitation (100-300mni per aniium) and, in the western part of the area, extremelysteep topography.
Due to these conditions, only a liinited number of Palestinian conimunities developed in this area. The
Palestinian population is relatively sparse, and lives in tliree areas: the city of Jericho and the Auja area
nortli of Jericho, which were transferred to the control of the Palestinian Authority (Area A) in 1994;
tlie villages in the Jiftlik area(MarjAn-Na'aja,Zubeidat, QarawaAl-Foqa); and a number of villages in
the nortli of the Jordan Valley,iiicludiiîg Bardala and 'Eiiiel-Beida. There are no permanent Palestinian
comniunities in the Judean Desert and Dead Sea areas.
237. 1:lishaEfrat,JzrdeoanrlSuinuiitr:Ourlirie,/b~P.l~vsolloi?i(in Hebrcw) (Jwusalcni: Ministry of thc Intcrioi; 1970),p. 27.
i 93 ]In tliis strip,tliemain infringemeiit of Palestiiliaiihuman rights relates to the restriction of opportunities
for economic development and for agi-iculture,in particular, To a lesser extent, opportunities for urban
developmeiit are also reduced.
On the declaration of tlie establishment of A~ot Hayarden Regional Couilcil, the theii Commander of
IDF Forces in the West Bank, Binyamin Ben-Eliezer, signed the rnap showing tlie area of jurisdictioil
of this council, wliich is allocated the entire Jordan Valley, except for the Palestinian communities
mentioned abo~e.~"The iinmediate ramification of this declarationwas toblock Palestinians froin using
tliese lands or expanding their agricultural activities.
As proved by the settlements located along the Jordan Valley,and despite tlie harsli climatic conditions,
the land in this area permits the development of diverse branches of agriculture through the use of
irrigation technology. The fact that Palestinian agriculture did not develop iii this area prior to 1967 on
a more sigiiificant scale is due to tlie lack of know-how and resources that would enable exploitation
of the underground waterbasins. During the 1960s,tlie Jordanian administration initiated a large-scale
project to inove water via cliaiînels fiom the Yai~nukRiver to the entire West Bank. This project was
discontinued after the Israeli occi~pation.~~ A~dditional evidence may be found in a publication of the
Ministry of die Interior'sPlanning Division dated 1970,prior to the commencement of the settlement
drive, which analyzes the geogapliy of the WestBank and recommends tlie development of Palestiniaii
settlement in the Jordan Valley, "to be accompanied by regional developrnent projects, particularly in
the field of irrigation and land preparatio~i.""~
The reliailce of tlie Jordan Valleysettlements on agriculture, which is, as noted, dependent on intensive
irrigation, denies Palestinian residents the opportunity to enjoy a largeproportion of the water resources
in the region. Several undergrouiid water basins exist along the entire Eastern Strip, constituting part of
the largcrsysteinkiiownas the "mountain aq~ifer."~~A 'ccording to the interim agreement between Israel
and thePalestiniaiiAutliority,Israel ispennitted to pump fortymillioilcubic litersper annuin froin these
basins for the useof the settlements in the area, constituting some foi-typercent of the annual renewable
watcr in these basins, i.e., nat~iral The water consumptioii of the population of tlie Jewish
settlements intlieJordan Valley - a population of less than 5,000 - is equivalent to seventy-five percent
of the water consuinptioii of the entire Palestinian population of the West Bank (approximately two
million people) for doinestic and urban use. This discrepaiicy is particularly disturbiilg in the context
of the severe water shortage facing the Palestinian populatioil in general, and tlie rural population in
parti~ular.~~'
240. Ordcr Conccrning the Matiagcincnt of Regional Couiicils (Aincndment No. 2) (Judca and Samaria) (No. 806). 5740-1979, Map of the
Arca of Biq'atHayardcii Rcgional Couiicil, 30 Scptcinbcr 1979.
241.This plaiiwas kiiownas the Wcstcin Glior Cliaiincl. For dctails of the projcct, sec Micha Bar, Coupel-olionundHegiine.~iizlnferiiir~ional
UruiiirrgrBusin- TI7eFunclionq/;Vol-ins(iii Hcbrcw) (thcsis loward a Ph.D. in Philosophyat thc Hebrcw Uiiiversity of Jerusalcin, 1908).
242. llisha Efrat.Jiideoand Son~nriu,p. 71.
243. For dctails of the cliai.actcristicsof the aquifcr, scc R'Tsclcin,Tl7iits-:,fi)lu-Solutiun.
244. Intcriiii Isracli-Palcstiniai Agrcciiicnt Rcgarding the West Bank andGaza Strip. Washington.Scptcinbcr 28, 1995, Protocol Conccining
Civil Affairs. Aniclc 40. Schcdulc 10.This agreement cstablishcs tliat the iiatural rccliaigc of the hasiiis is 172iiiillion cubic liters pcr aiinclin-
a fig~1i-tchat is coiitrary to tliccstiiilatc of iuost expcrts, who put the nai~iralrcchargc at approxiinatcly 100inillion cubic litcrs pcr aniiuin. Scc
7%iiiVfh,iU ~0~11/~0p. 30.
245. For dctails of lhc watcr shoi-iagc.scc B'Tsclcin,A'otEien - TheoFfi7l;.rri.vi.siii Pulc.ssrillug~.~il17ol FV'lte. clivoi-k
(Inforiiiation Shcet, Jiil).2001Just as the inclusioii of most of the Jordan Valley inthe area ofjurisdiction ofAi-votHayarden Regional
Council denies the Palestinian population the possibility for agricultural development, the iiiclusion
of the Dead Sea shore and Judean Desert in the area of jurisdiction of Megillot Regional Coiincil
deiiies valuable possibilities for industrial and tourism developinent. In tliis context, it is important to
emphasize that the Dead Sea is a unique nahirai phenoinenon. Israel exploits tliis resource intensively,
particularly in the section to the soutli, witliin the Green Line, both for its chemical industsy (tlie Dead
SeaWorks)and for tourism. These two economic activities create numerousjobs and significantforeign
cusrency earnings.
The enclave handed over to the control of the Palestinian Authority in 1994includes the city of Jericlio
(17,000) and the Auja area (3,400). The two sections are linked by a nasrow corridor susrounded on al1
sides by settlements, NAHAL outposts and IDF bases, preveiiting aily possibility for significant urban
sprawl beyond the boundaries of tlie enclave. The Auja region is blocked to the north by the settlement
of Niran (60), and to the west by the settlement of ~itav (110) and the adjacent militaiy base. Tlie
corridor coiinectiiig the Auja region to the city of Jericlio is blocked to the east by the settlement of
No'omi (130) and tlie NAHAL outpost Zuri, and to tlie west by two IDF bases. Tlie city of Jericho
itself is blocked to the Westby the edge of the area of jurisdiction of Merliav Aduminim (within the
Jerusalem Metropolis - see below), while area A to the south of the city is blocked by tlie settlement
of Bet Ha'arava (55) and the NAHAL outpost 'EinHogla. Aqbat Jaber refugee camp (5,400), on the
southwest edge of Jericlio, isblocked almost entirely by tliesettlement of VeredYerilio(160).
In total, the municipal boundaries of the settlements in the Eastern Strip encompass approxiinately
76,000 dunam, of whicli approximately 15,000are developed areas inhabited by soine 5,400 residents.
As iioted, unlike the otlier three areas, most of tlie undeveloped areas within the borders of the
settlements are used for agriculture or eariiiarked for sucli use in the future. Tlie areas of the regional
councils outside tlie municipal bouiidaries encoinpass sonie 1,203,000 dunam; in the case of Arvot
Hayarden Regional Council, part of this area is farnied by settlers.
B. The Mountain Strip
The second strip extends along tlie eiitire Iength of tlie West Bank in the pealts of the mountain range
along the waterslied line. Tlie nortliern and southern borders of the strip are the Green Liiie. The
easteni and western borders are not clear. In tlie east, tlie border is set at the four-liundred-ineter
elevation contour,which is the western border of the EasternStrip, while the western border is at around
the 400-500 meter elevation. In climactic terms, tliis is a relatively cool area witli relatively heavy
precipitatioil. However, topograpliical conditions severely restrict tliepossibilities for farming.
This strip includes the six lai-gestand inostpopulous Palestinian cities in the West Bank: Jeniii,Nablus,
Ramallali, East Jesusalein, Betlilehem and Hebron, wliicli are surrounded by dozens of towns and
small and medium-sized villages. Accordiiigly, and in keeping witli the principles of tlie Alon Plan,
the Ma'aracligovenlments (1969-1977) generally refrained froni establishing settleinents in this area.
The wave of settlement in this area tlius begaii after the sise to power of the Likud, and particularly
after 1979, when the procedure for declaring land as state land began. Most of these settlenîents werc
establislied by tlie Settlemeiit Division of the World Zioiiist Organization, and were ti-ansferredto themanagement of Gush Emunim (or one of the otlier settling movements), which was responsible for
populatiiig them with settlers. Tlie result is tliat the coinmiinity settlement is by far the most common
forin of settlement in the Mouiitain Strip.
Unlike the cooperative and urbansettlements,community settlemeiits geiierally lackany local economic
base. Most of the settlernents do ~iotfarm tlie land, and most of the residents work in urban centers
inside Israel. This is due to the topographical conditions aiid to the dense Palestinian population iii this
area, which prevented Israel from seizing control of extensive patclies of land and allocating theni for
agriculture. Also,the emphasis on agricultural labor is lesspronounced in the ideology of GusliEmunim
than in tliekibbutz andmoshav movernents.
111administrative terins, the Israeli-coiltrolled laiid iii this area is divided ainong four regional coiincils
(Shomeron, Mate Binyamiii, Gush Ezyon and Mt. Hebron). The areas ofjurisdiction of these councils
extend west into tlieWesternHills and the Jerusalem area. Other lands that Israel has taken control ofin
this strip are included iii the areas ofjurisdiction of a iiumber of local councils.
The distribution of settlements in tlie Mouiitaiii Strip is similar to tliat in the Eastern Strip, i.e., the
settlements are arraiiged in two parallel strings. Tlie first aiid central string extends across tlie lengtli
of the West Bank, alongside or adjacent to Road No. 60, wliich is the main road connectiiig the six
main Palestiniaiicities inthe WestBank. Frorn iiorth tosouth (and excludiiig the Jerusalem Metropolis),
tliis strip included the settlernents of Gannim, Kaddim, Sa-Nur, Hoinesh, Shave Shomeron, Qedumim,
Yizliar,Tapuali (see Photo 2), Relielim, Eli, Ma'ale Levoiia, Sliilo, Ofra, Bet El, Pesagot, Karme Zur,
Qiryat Arba, Bet Haggai, Otiii'el aiid Shim'a. To this one sliould add Elon Moreh, Har Brakha aiid
Itainar, which lie adjacent to Road No. 57, tlie main braiich of Road No. 60 circumventing the city of
Nablus to the east.
The second string of settlements in tliis strip is situated to the east of Road No. 60 and the watershed.
To the iiorth of the Jerusajem Metropolis, tliis string ruils along Road No. 458 (also known as the
Aloii Road); tliis includes Migdalim, Kohav Hashaliar, Rimoiiim (see Photo 3) aiid Ma'ale Mikhiiias;
to the soutli of the metropolis, the string extends alotig Road No. 356, froin the southeast corner of
Betlileliein through to the Green Line; tliis area includes Teqoa, Noqedim, Ma'aleAinos, Mezad, Pene
Hever, Carmel, Ma'on, Suseya,Shani and Mezadot Yehuda.
The dispersion of settlemeiits along Road No. 60 reflects Israel's objective tocontrol the main transport
artery of the Palestiiiian population by creatiiig blockages preventing the expalision of Palestinian
construction toward theroad, and to prevent the growing together of Palestinian communities located
on differeiltsides of tlie road. This objective, which has been partially realized, is stated explicitly in the
Huiidred Thousand Plaii, as follows:
The majority of the Arab population is coiicentrated in this strip, in tirban and iural communities.
The mouiltain ridge road [RoadNo. 601is essentially a local Arab traffic artery. Jewish settlement
aloiig this road will create a mental obstacle in coiisideriiig the iiiouiitaiiiridge, and may also liiiiit
the uncoiitrolled expansionof the Arab ~ettlement.~~~
246. Miiiisiryol'Agricullurcand tlicScttlcincnl Divisionoftlic WorldZionisi OPrlurr.fi)r.Yc~irlent~nt,fid~.idnoaor,i~i
Dei~c?lc~1nieni/t./o~t.he .4reofor 1983-1986.p. 22.In inost cases, tliese settlements are isolated aiid occupy relatively short stretclies of the road. In several
places, however, Israelhas inanaged to create a block of settlementscontrolling amore sigiiificaiitsection
of Road No. 60. One example of this is the Shilo - Eli - Ma'ale Levoiia block (total 3,900), whose
municipal boundaries extend over some 7,700 dunam around tlieroad (see Map 9). Anotlier example is
the settlementof Shim'a(300). situatedby the roadin the southern extremity of the WestBank. Although
tliis settleineiithas only a relatively limited built-up area (265dunam, including an outpost to the south),
itsborders includeno less tlian 10,600dunam, which isfortytimes the built-up area (see map
Because of the location of these settleiilents on or adjacent to Road No. 60, the Oslo Accords stated
tliat most of this road would continue to be under direct Tsraelicontrol, i.e., it was defined as Area C.
The presence of Israeli citizem at various points of dispersion along a long stretch passing through
deiisely-populated Palestinian areas has led to a significantmilitary presence to protect these citizens.
During periods of risiiig violeilce against settlers, Israelhas respoiided by imposing harsli restrictionson
the freedom of movement of the Palestinian population along this key artery. These restrictions disrupt
al1aspects of everyday life for soine two million Palestiniaas and severely infringe tlie right to healtli,
employinent, fainily life and educati~n.~~~
Shortly after the outbreak of the al-Aqsa intifada, Israel blocked the access roads from Palestinian
coinmunities in the mountain area to Road No. 60, either by means of pliysical roadblocks (dirt piles,
concrete blocks or treiiches) or by establishing checkpoints staffed by IDF soldiers that prevent the
passage of Palestinian veliicles. According to official Israeli sources, tlieblockage of these roads isalso
intended to prevent acts of terror within Israel, but these sources do not deny that one of the main goals
of tliis policy is to ensure the safety of tlie sett1e1-s.~T ~~e connection between tlie presence of settlers
and restrictions on freedom of movement is even more apparent in places where Road No. 60 passes
i.i~ithi1tl7ie built-up area of Palestinian cominunities, suc11as in the towns of Hawara (5,100) and Silat
Adh-Dhahr (5,500), in the districts ofNablus and Jenin, respectively. Since the beginning of the al-Aqsa
intifada, tlie IDF has responded by imposing curfews on these towns for protracted periods, in order to
ensure the freedom of moveinent of the settlers wlio live in the adjacent sett1einents.-j0
Moreover, some of the settlements along Road No. 60 block the urban developinent of tlie six main
Palestinian cities, at least in some directions. Betlîlehem and East Jerusalem are affected inaiillyby the
settleineiits in the Jerusalem Metropolis, to wliiclitliereport will relate below.
The city of Hebron (140,000) is blocked to the east by the settlement of Qiryat Arba (6,400), and to
the soutli by tlie settlernent of Bet Haggai (400) and the NAHAL outpost Aner. Within the heart of
Hebron, tliereare a number of scattered Jewish settlementswith a total population of approximately four
hundred. In tlieOsloAccords, the presence of these settlementshas led to theremainder of an entire strip
on the east of the city under Israeli control (area H2). The settlements in tlie lieart of Hebron severely
damage not only the urban development of the city, butalso the ability of the residents to live a normal
life. The inaiilreason for this is the systeinatic violence exerted against tlie residents by tliesettlers who
-.- -A-
247.Aiiolhcr proiiiiiicni cxaiiiplc ol'this pliciioinciion is Gush Ezyon in tlic Jcr~isalcinMctropolis. as discusscd bclow in this clial>tcr.
24s. For clciailsoftIiuii~rainificalions of restrictions on thc ficiiiovcincisl.B'Tsclciii.Civiliuits under Siege. pp. 9-10.
249. For cxainplc, sec the rcsponsc of the IDT:Spokcspci-sonto llic R'Tsct ii~i1inn.rs~riese.
250. R'Tsclc ni.iliu~i.~under Siege, pp. 9-IO.live in tliese areas."' Since the begiiining of the current intifada, and less frequeiitly in earlier periods,
the IDF has imposed curfews for extended periods on tlie 30,000 Palestinians wlio live in areaH2, with
the goal of enabling tlie settlers in the city to continue their regular life as much as possible.
The development of Rainallah aiid al-Bira (53,800) to the northeast is completely blocked by the
settlement of Bet El (4,100) and the large IDF base to the south of the settlement, which houses the
headquarters of the Civil Administration. This Israeli preseiice also breaks the territorial coiitiguity of
Ramallali and the villages of 'EinYabrud and Beitin (total 5,400). The settlement of Pesagot (1,100)
begins close to the last liouses of Rainallali on the eastern side. Pesagot effectively functions as an
enclave within the city, which it controls topographically, and blocks tlie expansion of Ramallah in tliis
direction (see Photo 5).'52
The urbaii area of the city of Nablus, whicli includes eiglit villages and two refugee camps that are
completely coiitiguous with tlie city (total 158,000) is surrounded oii almost al1sides by settlements
blocking the area'sdevelopment (see Map 7). The settlements of Har Brakha and subsequently Yizhar
(total 1,100) lie to the south of tlie city itself. To the west are tlie settlements of Qedumim and Shave
Shoineron (total 3,300). To the east, adjacent to the refugee camps of Askar and Balata (total 26,600),
are the settlemeiits of Elon Moreh and Itainar (total 1,600). The municipal boundaries of the Itamar
settlement (540) extend in a soutli-east diagonal over an area of soine 7,000 dunain - fourteen times
the current built-up area, which also iiicludes a iiumber of new outp~sts.'~'This large area completely
blocks the developinent of the town ofBeit Furiq (9,100) to the south. In addition, over theyears, settlers
froin tliese settlements liaveexerted violence against local Palestiniaiis; the Israeli autlioritiesliavebeen
delinquent in eiiforciiigthe law on the off en der^.^'^
Twosettlements, Gannim and Kaddini (total 300), suiround Jeniii(41,900). These settlements overlook
tliecity froin the east (in topographical terms) and cut up the largest areaof contiçuous territory lianded
over to Palestinian coiitrol (Area A). According to tlie outline plan, tliese settlements are expected to
grow to up to fivetimes theirpresent size, and to extend froin the soutliernsuburbs of Jenin to the village
of Umm At-Tut to the east of the ~ity.*~'
The impact of the settlemeiitsalong tliesecond cliainof the MouiitaiiiStriponthe Palestinian population
is less iiiimediate than in the case of the settlements along Road No. 60, because the former lie to the
east of the Palestiniaiipopulation centers.As in the case of the Eastern Strip, tliemain impact lies in tlie
seizure of land which, were it not for the settlemeiits, could have beeii used for thedevelopment of tlie
Palestinian ecouomy and tlie urbaii development to the east of the population centers on the mountain
ridge. Soiiieof these settlements liave significant land reserves included in their municipal boundaries.
The seizure by Israel of extensive land in this area exploits ilie sparse Palestinian cominunities and
topographic conditions that have made it difficult for Palestiiiiansto engage in sigiiificaiitagricultural
activities in tliese areas.
. ... . - . .....
25 1. Sec, for exainplc. B'?'sclçin,/rnpo.ssihlc~Coe.vi.stence:Hurnon Kiglrrs NzHebron sirzce ta/theuCnverof rhe P(~friurchs
(IiiforinatioiiShcci, Scptcinbcr 1995).
252. Sec ilic cotniiicnts on thc urbaiidc\~clopiiiciitiitlic discussion on tlic Jerusalciii Mctropolis, bclow.
253. Outlinc i'laiiNo. 16313.Itaiiiar.
254. Scc lootriotc 66.
255. OiitliiicPlan 16811.Mcrhav Kaddiin,aiid Outlinc PI;iii13812,Mcrhav Ganiiini.To the north of this strip, along Road No. 596, lie the settlemeiits of Hinanit, Tel Menaslie (Hinanit
B), Sliaqed and Rehan (total 1,100). The first three of these settlements iiiclude several built-up sites
(including one industrial zone), and their outline plans reflect an intention to expaiid these settlements,
creating a compact and coniiguous bloc exteiiding over some 9,900 dunam - nine tiines the present
built-up area (see Photo l).2s7Furtlier south, adjacent to Road No. 585, are the settleineiits of Hermesli
aiidMevo Dotaii (total 600). Mevo Dotan isplaiined for expansion over an area of approximately3,000
dunam - ten tirnesthe present built-up are~i.~~A*long Road No. 57 (the Tulkarem-Nablus road) lie Enav
and Avne Hefez (total 1,300). Not far to the south, close to the Green Lille, is the settleinent of Sal'it
(410).
The area between Road No. 55 (the Qalqiliya-Nablus road) and the Trans-Samaria Highway (Road
No. 5, which extends from Rosh Ha'ayiii to the Jordan Valley) is the area of tlie Western Hills in
higliest demand, since it lies parallel, and only a few miles away, fromtlieTel-Aviv - Herzliya regioii.
Ili the northeast conier of this area, close to Road No. 55, lie the settlemeiits of Qanle Shomeron,
Ma'aleShomeron, Iminaiiu'el,Yaqir and Nofim (total 10,700).The municipal boundaries of these five
settlements create an alinost completely coiitiguous urban area extendiiig over soine 13,000 dunam -
alinost four times the built-up area.
In the same area lies a large group of settlements in a fuiinel-sliapedbloc, from Tapuah on Road No. 60
(at the narrow end of the funnel) to the Green Line (the broad end). Tliis group includes Ari'el, Revava,
Netifim, Barqaii, Ez Efrayim (see Photo 4), Elqana, Slia'areTiqva, Oranit, Alfe Menashe, Zufin, Ale
Zahav aiid Padu'el (total 35,900). On tlie whole, the areas of jurisdiction of these settlements are not
coi-itiguous,and are interrupted by Palestinian coinmuiiities defined as Area B, as well as agricultiiral
land defined as Area C (see Map 8). At the ceiiter of the funnel lies the settlement of Ari'el,wliicli is
discussed in Chapter Eiglit.
To the south of the Trans-Samaria Highway, alongside Road No. 465, lie (from east to west) the
settlement of Ateret, Halamish, Ofarim and Bet Arye (total 4,300). In terms of size, Ofarim (690) is
exceptioiial, with municipal boundaries extendiiig over an area iii excess of 6,000 dunam - fourteen
times the current built-up area. Between Road No. 465 and the nortliem border of the Jerusalem
Metropolis lie Nahli'el,Talmon and Dolev (total 2,400) to the east, whose borders create an additional
bloc exteilding from iiorth to south over an area of some 7,700 dunain, alinost seveil times the existing
built-up area. Parallel to this bloc and to tlie west, adjacent to the Greeii Line, lies anotlier bloc of
settlements composed of Na'aleli,Nili (see Photo 1l), Hashinona'im,Modi'inIllit, Menora, and Mevo
Horon (total21,500).
To tl~csouth of the Jenisalein Metropolis, alongside Road No. 35 (tlieTrans-Judea Higliway), withiiithe
area ofjurisdiction of Mt. Hebron Regional Council, lie the settlements of TelernaiidAdora (total 370);
further south are the NAHAL outpost Negohot and tlie settlements of Eslikolot aiid Teniie (total 730).
Themunicipal boundaries of the latter two settlements cover an area of some 15,300dunam - more than
thii-tytiines their current built-up area (see Map 10).
257. Dctailcd Plan tiiiiaiiit. No. 101, 101:2, 101!3and Dctailcd Plan Shaqcd, No. 103. 10312.10313.
258. Outlinc I'laiiNo. 104. Mcvo Ilotaii.Apart from liinitiiig tlie possibilities for urban aiid econoinic development tlirough tlie seizure of land,
the main impact on tlie Palestinians of tlie settlements iii this strip is the disruption of the territorial
contiguity of tlie Palestiiiian communities situated along the strip. This disruption is seen most clearly
in the higli-deniaiid areas. Followiiig the transfer of powers to the Palestiniaii Authority under the Oslo
Accords, this situation lias resulted iii the creatioii of over fifty enclaves of Area B, aiid a smaller
number of enclaves defiiied as Area A, al1of which are surrounded by Area C. which continues to be
uiider full Israeli control. In most cases, the boundaries of Area A and B are almost identical to the
edge of the built-up area of the Palestinian coinmuiiity (for example, in the villages of Azzuii, Biddya,
Az-Zawiya, Mas-lia, Deir Balut, Rantis,Abud, and Qibya).As explained in Chapter Six, the ramification
of this situation is that althougli powers in the field of planning aiid construction iii areas A and B were
ostensibly transferred to the Palestinian Authority,Israel continues to restrict Palestiniail construction to
the best of its ability in theon-built-up areas beloiiging to tliese commuiîities and tlieir residents.
This phenoinenon is less pronounced to the south of the Jerusalem Metropolis, due to the smaller
number of settlements in this area, but it is still evident. For example, tlie location of the settlements of
TelemandAdora breaks a territorial contiguity that miglit othenvise liavebeeii created betweeil the Area
B bloc coiitaiiiing the towiis of Beit Surif and Tarquiniya and the Area B territory to the south of Road
No. 35, includiiig the town of Idna, and Area A, wliich coiitaiiis the town of Dura. IIIaddition, the two
settleinents preveiit contiguity witliAreaA, in which Hebroii is located.
A further ramification resulting from the locatioii of some of the settlements iii this strip literally on
tlieGreen Line is the blurring of this liiie as a recognized border between the sovereign territory of tlie
State of Israel and the West Bank. Iii certain areas, the Greeii Liiie niiis witliin an urban area exteilding
to either side. Thus, for exainple, the bloc of settleineiits Haslimona'iin - Modi'iii Illit- Matitiyahu
borders on the Greeii Liiie, creatiiig a contiguous urban bloc witli the cominunities of Hevel Modi'iii
Regional Couiicil (Shilat, Lapid and Kefar Ruth), wliicli were established witliin the area tliat, until
1967,separated Israel and Jordan and was later aiinexed to the State of Israel (see Chapter One). In the
case of the Oraiiit and Shaiii (Mountain Strip) settlements. the Green Liiie passes tlirouglithe built-up
area. This plienomenon is eveii more pronounced in the Jerusalem area, as will be discussed below.
The municipal borders of the settleiiieiits in the Westeni Hills Strip include a total of some 109,800
dunani, aiid are inliabited by approximately 85,000 settlers. Less than thirty percent of tliislaiid(30,900
dunam) is developed. Accordingly, tliepoteiitial area for the expansion of these settlenieiits is currently
approximately 80,000 duiiani, represeiiting a growth rate of approximately 260 percent. In addition, the
area ofjurisdiction of the three regioiial councils mentioiied above totals some 264,000 duiiarn,which
liavenot beeii attaclied to any settlement and coiistitute land reserves for the filture.
D. The Jerusalem Metropolis
Since the 1967 war, lsrael has acted vigorouslyto establish new physical facts (settlemeiits and roads)
within ail extended circle with West Jerusalein atits ceiiter. The result of these activities lias beeii the
creatioii of a large metropolis exteiidiiig aloiig threegeographical strips: from the outskirts of Ramallah
to the north to tlie bloc of settleinents to the southwest of Bethlehem in the south; and froiii the edge of
Ma'aleAdiiinmiiii to tlie east to Bet Shemesli,wliicli iswithin Israel proper, tothe West.The concept of a "metropolis" refers to a situatioii iii wliich a given geographical area coiistitutes, in
urbaii aiid functioiialterins, a single unit comprised of coordinated sub-uiiits.The Jerusalem Metropolis
was established witli the declared purpose of serviiig its Israeli-Jewish residents while causing harm to
its Palestiiiiaiiresideiits.The idea of planiiing the Jerusalem area as a inetropolis was etnbodied ii~1994
in a inaster plan prepared for tlie government by the Jerusalem Iiistitute for Israel Studies. The master
plaiiproposes guidelinesfor development for tliearea throughtlieyear 2010."9Altliough the plan hasno
legal force, it has, according to the StateAttorney'sOffice, served as a basis for planiiing the expaiision
of Ma'aleAduinmiin tothe we~t.~~~
Some of tliesettlementstllat Israel erected iii this area were established within the area ofjurisdiction of
the Municipality of Jerusalein (hereafter: Muiiicipal Jenisalem), while otliers were established outside
its area ofjurisdiction (hereafter: Greater Jerusalein).
Municipal Jerusalem iiicludes approximately 70,000 duiiam of tlie WestBank, wliicli were annexed to
the Municipality of Jeiusaleiii pursuaiit to a decision of the Knesset in 1967, aiid in which Israeli law
was iinposed on anofficialaiidexplicit basis, ratlierthan inerelydejbcto. Approximately nine percent of
tliis area (solile 6,000 duiiam) formed part of Jordanian East Jerusalem, wliile the remaining ninety-one
percent belonged to twenty-eight villages in the area.26'Settlements in tliis area are perceived by most
of tlie Jewish public in Israel, aiid by the government, as constituting an integral part of the State of
Israel, and their developineiithas contiiiued on an intensive level silicethe beginniiig of tlie occupation.
These settlements currentlyhave a population of approximately 175,000 - slightly less tllanal1tlieother
settlemeiits combined.
Over one-third of llie area atinexed to Jenisalem in 1967 was expropriated during tlie years tliat
followed, aiidwas used to establish twelve settlemeiits:Neve Ya'aqov,Pisgat Ze'ev,French Hill, Ramat
Eshkol, Ma'alot Dafiia,Ramot Aloii, Ramat Slilomo (Rekhes Sliu'afat),the Jewish Quarter (in the Old
City), East Talpiot,'" Giv'at Hainatos, Har Homa (see Photo 7) and Gilo. To these, one should add
the industrial zone and airfield at Atarot. Several of these settlemeiits (Ramot Eshkol, Ma'alotDafiia,
Ramot and East Talpiot)create full territorial contiguity witli West Jerusalem, while the remaiilder are
interspersed witli Palestiiiiaii areas. Muiiicipal Jerusaleni is a prominent example of the eliminatioil of
any sigiis of the Green Line tlirough contiguous urban developinent.
The main harm to tlie Palestiiiiaripopulation inherentin the establishmeiitof the settlementsiii m~iiiicipal
Jerusaleinis the massive expropriationof land, most of wliichconstitutedprivate Palestinianproperty,as
describedinCliapterThree.As withmostofthe settlements tlietlireegeographicalstrips,thesesettlements
significaiitlyrestrict the capacity for LU-ban developmeilt in the Palestiniaiineighborhoods and villages
annexed to Jerusalein. The outline plans approved for the Palestinian neigl~borhoodsin the aniiexedarea
tlirouglitheendof 1999showthatapproximatelyeleveiipercentof theareareinaiiiingafierthe expropriation
is available for Palestinianconstn~ction.Approximately forîy percent of tlie planned areas witliiii these
rieigliborhoodsaredefinedas "open landscapeareas,"wherecoiistructionof aiiykind isprol~ibited.~~'
ilote for Isracl Stildics, The./enrsol~iiiMc.lroj)»/is-A hfuslcr Plan cit lun (in Hcbrcu) (Jcrusalcin, 1994).
260. Paragraphs 83-85 of tlicrcspoiiscsuitiii Mo'uleAduiiiinim(sec footiiotc 153.s~rpru).
261. t3'Tsclon.A Polirj~ofJ)i.~ciLiii,. 17.oilp
262. (rtliis contcxt, East Talpiot is an crtccptioii bccaiisc it is locatcd onbotli sidcs of tlic bordci.that scparntcd, from 1949to 1967, the
dcinilitlirizcdascdcoiitrollcdby lsracl and thc dcinilitasizcd arca coiitiollcd by Jordan.
263. Ir Shalciii,Easf./~~irniPloiiniiigSiru~r.. 5.Iii soine cases, the settlemeiits in Muiiicipal Jenisalein create divisions between Palestiiiiaii areas aiid
preveiit their iiatural expansion and the creatioil of territorial coiitiguity. For example, Frencli Hill
preveiits the connectioii of SlieikhJarah and WadiJoz oiithe one side, and Isawiya aiid Shu'afat 011the
other.Similarly,Giv'atHamatos andHar Homa disrupt the territorial contiguity between BeitSafafaand
the soutliof Sur Baher.
Ail additional problein is tlie physical severance of the Palestinian areas of Municipal Jerusalem from
the remainder of the West Bank, a result of the geileral closure imposed by Israel in the WestBank in
1993.Sincetlieii,Palestinians without a specialpeniiit have been prohibited fromentering Jerusalem.'"
This measure has severely impaired the right of freedonl of movement aild otlier associated rights
because it disiupts travel between the soutliernand northern portions of the WestBank, the main route
for which passes through Jeiusalein. This step has ledto the diversion of al1traffic to the WadiAn-Nar
road to the east of the city,prolongingjourney times considerably.
Greater Jerusalein includes four blocs of settlements that are thoroughly connected to municipal
Jerusalem aiid to tlie West of the ~ity.~~T ~he main compoiient, aiid an esseiitial condition for tlie
existence of the metropolis, is the presence of a complex aiid sophisticated network of roads enabliiig
rapid travel between al1parts of tliemetropolis and tlie center.This iietwork enables the westernportion
of the city to f~~iiction as ail employment base and a center for various services (healtli, education,
entertainment, etc.) for the Jewish residents of tlie eiitire metropolis. Conversely, the settlements in
Greater Jerusalem offer clieap housing solutions for tlie residents of muiiicipal Jerusalem. Moreover, a
trend is einergiilg whereby settlements in Greater Jerusalem provide various services for the residents
of municipal Jerusalem.
One of the settlemeilt blocs is situated to the northwest of the area of jurisdiction of Jerusalem,
including tlie settlements of Giv'on,Giv'oiiHaliadashaand Bet Horoii (total 2,000), which formpart of
Mate Binyamiii Regioiial Couiicil, andGiv'at Ze'ev (10,300) whichis a local couilcil. The borders of
these settleinei~tsiiiterconnect, creating a long finger that coiiiiects to the settlement of Rainot withiii
mui~icipalJerusalcin, witli almost complete territorial coiitiguity.A little furtlier soutli lies the local
couiicilofHarAdar (1,400) (seePhoto 8),wliichformspart of the same system.This bloc ofsettleinents
currently relies 011 Road No. 443, and iiitlie future will rely on Road No. 45, wliicli is now under
constructioil.Tliese roads coniiecttliearea to Modi'iiiand the Jeiusalein -Tel-AvivHighway,as well as
to the city of Jenisalein.
A second bloc of settlements lies to the northeast of the borders of Jerusalem, includiiig Kokhav
Ya'akov,Tel Zioii, Geva Binyamiii (Adain) and Slia'arBinyamiil Industrial Area, al1within the area
of Mate Binyamin Regioiial Council (total 2,700).A few kiloineters north of Kokhav Ya'akovare tlie
settlemeiits of Pesagot and Bet El, which belongto the Mountain Strip in terms of the composition of
tlieirpopulatioil and the type of settlement,but in terins of distance could also be coiisideredpal?of the
Jerusalein Metropolis. Tlie bouiidariesof these settlenie~itsforin a long cliain connecting tliearea tothe
settlemeilt of Pisgat Ze'evwitliin the borders of Jerusalem.
264. For inorc oii tliis aspect. scc B'Tsclcin,Bivide uridK~rle:Prohihitionon Po.erS/r.bind the R>s/Boiik(Inforiiiation
Slicci. May 1098),p5-0.
265. l'liis rcport docs iiol rclatc to prisof tlic inctropolis, sincc thcsc iisovcrcigii Isracli tcrritory, aiid arc thcrcforc
oiitsidc tlicpurvicw OSthc rcpoil.. ' Dispersion of Built-up Areas-,, ' , *. Settlements (Divided iiito ~e~ions*)
a
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$ ,L,:;. 'E f:Settlements'Land Control in SoutliMoulitHebroiiArea
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; .-&C.Ini PLxd I.,.I:,!.rThe principal influenceof tliese two blocs iii the north of tlie metropolis is to create a barrier severing
the surrouiiding Palestiiiiail villages. The principal villages in the area are Al-Qibiya, Al-Judeira, Beit
Iksa and BeitDuqqu to the west (total 5,600), and A-Rain, Hizina, Jab'aand Mikhmas to the east (total
30,100), as well as villages and neighborlioods included in municipal Jerusalem (priilcipally KafrAqab,
Beit Hanina, Isawiya aiid the Shu'afatrefi~geecamp). Moreover, Kokhav Ya'akovand the military base
adjacent to Giv'at Ze'ev(Ofer base) prevent the expansion of Ramallali to the southeast aiid soutliwest,
respectively.
The third bloc of settlements is situated to the east of the eastenl border of Jeiusalem. Its priiicipal
componeilt is the settlement of Ma'ale Adummim (24,900), the larges1settleineiit in the West Bank
(outside municipal Jerusalem), which includes Mishor Adumniim Industrial Area (see Photo 6). As
part of tliis bloc, to the north of the road fiom Jerusalem to the Dead Sea, lie a group of community
settlemeiits thatbeloiig to Mate Binyamiiî Regional Council: Mizpe Yeriho, Kefar Adummim (wliich
iilcludesAlon aiidNofe Perat) andAlmoil (total 3,600), as well astwo large arniy bases. Tothe southeast
of Ma'ale Adummiin lies thesettlement of Qedar (450),which belongs to Gush Ezyon Regioiial Council
(see Photo 12).Tlie borders of Ma'aleAdummim coniiect with those of this group of settleineiits, thus
creatiiigin the center of the West Bank a contiguous bloc extending over some 69,500 dunain, froin the
municipal border ofJerusalem to the western outskirts of Jericho. This area isalmost fifteen times larger
thaiithe curreiltbuilt-up area in tliese settleinents.
This bloc of settlements severs the territorial coiinectioil between the south of the West Bank and the
iiortli.Tlie niost coilcrete danger in this respect is tliat if Ma'aleAduminim is expanded to the west in
accordance with ils outline plan, the main road remainirig for Palestiiiians to travel fitomBethlehem to
Ramallah, the WadiAn-Nar road, will be blocked. As ineiitioned above, Palestiiliaiis have already been
prohibited to enter Jenisalein.
Establishment of the Ma'aleAduinmim settleineiit eiltailed extensive infringement of the Iiumaiirights
of the Palestiiiiaiipopulatioii. The initial area included iii the area ofjurisdictioii of Ma'aleAduininim,
some 30,000 duiiam, was composed of land that eveii Israel acknowledges was private Palestiniaii
property, aiid was therefore requisitioiied by means of expropriation orders.'" In 1998, followiiig the
amendment to tlie Ma'aleAduinmim outliiie plan callirig for the expansion of Ma'ale Adummim to
the ~est,'~'the Bedouin populatioii (Jalialiil tribe) living in the area was expelled.'" The expansion of
Ma'aleAdummim totliewest significantly liinitsthe possibilities for thedevelopment of tlieneighboriiig
villages - Abu Dis,Anata, Az-Za'imand Al-Azariya (total27,700).
The fourtli bloc is situated inthe southern part of the metropolis, to the Westand south of Bethlehem.
This bloc includes tlie inuiiicipality of Betar Illit (15,800), Efrat Local Council (6,400), and a nuinber
of smaller settlements beloiiging to Gush Ezyon Regioiial Council: Har Gilo, Aloi1Shevut, El'azar,
Neve Daniel, Rosh Zuriin, Kfar Ezyon, Bat Ayiii, aiid the NAHAL outpost of Geva'ot (total 6,100).
This bloc is lùrther reinoved from municipal Jerusalem, from which it is cut off by Bethlehem and
the surrouiidingPalestiiiiaii villages. However, tliis bloc f~iilctionsas part of the metropolis tlianks to
266. tL1o'~le(l~~rnnIatr,açrül~h3. Tlic ~lscof expropriaricin for public rieadscttlcrnctir is appürently unusual; in rnost cases,
Isracl liaspi-cfctodeclai-cland statc laiid.
267. Loc;ilOutlinc Plan, Ma'alcAduminiiii. No. 42014.
268. For Surthc~d.ct01this s~~hjcçts.cc B'Tsc011IIIM'u,to Aniie~-ution.pp.23-35.the Tunnels Road (a poi-tionof Road No. 60), which permits rapid travel to and from Jerusalem while
avoiding Palestiiiian-populated areas (see Photo 13).
~liis bloc contains inaiiy of tlie cliaracteristics mentioned in the discussioii on the types of settlements
and the settler population. Most types of settlements were establislied in this bloc: Gus11Ezyon is
included in the outline of the Alori Plan, and kibbutzim were established tliere tliat engage, inter uliu,
in agriculture (El'azar and Neve Daniel). This area also includes one of the largest ultra-Orthodox
settlemeiits (Betar Illit). Because of its relative proximity bot11to Jerusalem and to the Green Line
and the Jerusalem - Tel-Aviv Highway, Gush Ezyoii is a high demand area tliat has also attracted
middle-class settlersseekiiig to improve tlieir standard of living.
In teriiis of the ramifications of the bloc of settleinents on the Palestinian population, this bloc
also includes several of the main plienomena identified in other areas, from the blockage of urban
developinent to the restriction of freedoin of movement. The area of jurisdiction of the settleineiit of
Efrat exteiids in a diagonal to tlie northeast over an area of approximately 6,500 dunani. The tip of this
area touches the southern border of Area A in tlie vicinity of Betlilehem (Al-Khader and Ad-Duheisha
refugee camp - total 16,000), continuing along alrnost al1of this border and completely restrictiiig
urban development in this direction. The town of Nalialin (5,500) has effectively become a Palestinian
eiiclave surrouiided by settlernents preventing any possibility for urban devel~pment.~~A ~s in tlie case
of the settleiiients in the Western Hills, the settlements in tliis bloc also create an obstacle separating
the villages and towiis of the Betlilehem area froin the city of Hebron aiid its enviroiis. As in the case
of tlie settlements in the Mountaiii Strip, soine of the settlements in this area also lie along Road No.
60, creating a bloc tliat coiitrols a broad stretcli of the road. As a result. tlie IDF exteiisively restricts
the freedom ofmovement of Palestinians along the road, as it does in the areas of tlie settlements in the
Mountain Strip.
In total, tliemuiiicipal boundaries of the settlements in tlie Jeiusalem Metropolis include some 129,700
diinam, and the populatioil of these settlements is approximately 247,600. Of tliis land, approximately
34,600 duiiarnis developed. Accordingly, the potential for the expansion of tlie settlemeiits in tliis strip
is approxiiiiately 95,000 diinam, representing a growtli rate of approximately 275 percent. Coiitrary to
the other areas, inost of the land of wliich Israel has seized coiitrol over tlie years in the Jerusalein
Metropolis lias been attaclied to one of the settlements, tlius reducing the areas included in the two
regional councils in this area to soine 90,000 dunain.
Conclusions
During the discussions on tlie final-status agreement, a discourse developed among the Israel public
surrounding thequestion of "percelitages of land" - percentages lianded over, or due tobe handed over,
to the Palestinians, and percentages remaining, or tliatwill remain, in Israeli haiids.
As we have attempted 10 show in tliis chapter and in the inap accompailying tliis report, the location
of each area controlled by thesettlements - and not merely its size is a cnicial variable in teriiis of the
iilfringeinent of l-iumaiiriglits in general, aiid the chances for realizing the right to self-determination
269 Thc~cscttlcincnts arc Dctai Illit to thc iiortli, Nc\c Danicl to tliccast. RobliZuiiin to the south and Gcva'ot io thc wcîiin pal-ticular.The value of two percent of tlie area of the West Bank located in the Judean Desert, for
example, caniiot be coinpared wit1.ithe importance of a quarter of one percent of land included witliin
the area ofjurisdiction of the Ari'el settleineiit. The continiied Israeli presence in Ari'el obliges Israel
to control a long corridor (the Trans-Samaria Highway) leading to the settlement. This corridor extends
fi-omthe Green Line almost to Road No. 60, severing the contiguity of Palestinian territory in tlie
iiorth of the WestBank, which is a deilsely populated area. Similarly,the area ofjurisdiction of Ma'ale
Adummim occupies just 0.8 percent of the area of the West Bank. Nevertheless, Israel's continued
control of this area cuts the WestBank into two almost completely separate parts.
As this chapter sliows, in addition to tlie breach of international humanitarian law resulting from the
existence of tlie settleinents, the dispersion of the settleinents lias been the source of nuinesous human
rights violationsunder international law:
The maniler of dispersion of tlie settleineilts, iiicluding the areas of jurisdiction attaclied thereto,
over most of tlie areas of the West Bank creates obstacles preventing tlie maintenance of meaningf~il
territorial contiguity between tlie Palestinian communities. This plienoinenon prevents the possibility
of establishing an independent and viable Palestinian state, wl~ichis the framework agreed by al1the
relevant parties for realizing the Palestiilian people'sright to self-determination.
Eiitryintothe vastareas over wllich Israel liasseized control overthe years, which were added to tlie
areas ofjurisdiction of the regioiial councils, is denied to the Palestinian residents after a military order
is issued declariiigthe land a closed military area. This prohibition drastically restricts the possibilities
available to Palestinians for economic development in general, and for agriculture in particular. In the
Eastern Strip, tlie settlements deny Palestiniaii residents the use of a sigiîificantpart of the area'swater
resources. Tlieserainifications constitute an infringement of the right given to al1peoples to enjoy their
natural resources freely.
The location ofsoine ofthe settlements around Palestinian cities and towns, and sometimes adjacent
thereto,restricts thepossibilities for the urban developinent ofthe Palestinian communities, and in some
casesprevents suc11 possibilities almost completely.This phenomenon has a negative impact, in a degree
and inanner that vary in each iiidividual case, 011the riglit to a continuous improvement in standard of
living in general, and in the right to housing in particular.
The location of some of the settlements along key roads which, prior to the establishment of the
settlements, served thePalestinian population has led to the in~positionby Israel of strict restrictioils
on tliefreedom of movemeiit of this population, with the goal of ensuring the security and freedom of
moveinent of the settlers. These restrictions have a negative impact on a variety of rights, iiicluding the
right to work and make a living, the right to health and the right to education.
Table No. 9 suinmarizes the data mentioned throughout this chapter reçarding the scope of areas under
the control of the settlements. One of the inai11fiiidiiigsapparent in the table is the tremendous scope
of land - aliilosttwo million duilaiil - included in the areas ofjurisdiction of the six regional couiicils,
and wliich is not included in tlie municipal boundaries of the settlemeiits that compose the regional
couilcils.
Jt is likely that developinents in the political arena will dictate tlie future of these areas. As of now, no
operative plans areknowii to exist with regard to tliese areas. If the pace of constniction and expansionofthe settlementstypical of tlie 1990scontinues inyears to come, these areas may be used as reserves of
land forthe establishment of new settleinents and iildustrial zones, andlor for the expansion of existing
settlements. 111the eveilt that Israel agrees to the redeployineilt of its forces, includiilg the trailsfer
of additional areas to the coi~trolof tlie Palestinian Authority, it will be easier to transfer these areas
in the regional councils than to transfer areas included within the municipal boundaries of a specific
settleinent.
Table 9
Area of the Settlements, by Region (in thousands of dunam)
- --- -- --- - " -- - ----- -
Region Developed Non-developed Land Total Area under
Area Municipal Reserves* Control ofthe
. - - -- - - -* - Areas - -- -- - - - - -S-ttle.ent-
Eastern Strip 1-.8-- 61.1 1,203 1,279
Mouiltain Strip 16.9 45.3 409.4- 472
WesternH-lls--tr-p -- 30.9 -8.- 265-2 375
Jerusalem Metr-p-lis*" -34.3-- 95.1- 90.6 -20 -
Total 96.9 280.8 1,968.2 2,346
Totalas a percentage
of the areaof the 1.7% 5.1% 35.1 % 41.9%
West Bank***
- -- -
*
Withiiithejurisdiction of the regional councils.
** lncluding botli Greater Jerusalem and Municipal Jerusalein. The "area ofjurisdiction" of the settlements iii inunicipal
Jerusalem is calcubted according to the area attributed by tlieCentral Bureauof Statistics for each "neigliborhood"as a
statistical locale (Jerusaleni Institute for lsrael Studies,JerusalemStaea-book, able 4/A).
*** A total of sonie 5,608,000 dunam, which includes the areas annexed to Jerusaleni. The calculatioii docs not include
no-man'sland, and the proportionate area of tlie Dead Sea.Ari'elis one of the largest settlements established by Israel in tlie West Bank, both iii population and
area. In geographical terms, Ari'el is situated in the lieart of the West Bank. The eastern edge of the
settlement is only a few kiloineters from Road No. 60which, asnoted above, forms the backbone of the
mountain ridge. However, Ari'elis a secular and urbail settlement attracting settlers from the center of
the country (veteran Israelis and new immigrants froin tlie fornier Soviet Union). In general, the settlers
who coine toAri'elliope to find iriexpensivehousing and an improvement in tlieir standard of living.
Due to the above-ineiitioiied cliaracteristics, Ari'el is perceived by significaiit sections of the Jewisli
public in Israel as "just anotller Israeli city," blurriiig the factthatAri'elis ach~allya settlement situated
in the Occupied Territories. This perception seems to have influenced Israel'sposition concemiilg its
future borders during the iiegotiatioiis with the Palestinian Authority.Media reports suggest that al1the
proposals raised by Israel during the Camp David conference of July 2000 and the Taba conference of
January 2001 included theannexatioii of Ari'elto the State of Israel, despite the fact that, as mentioiied,
Ari'el issituated a considerable distance frorn tlie Green Line."'
The purpose of this chapter is toexamine in depth the impact and ramificationsof the settlement ofAri'el
on the surrounding Palestinian com~nunitiesand their residents.
A. Historical Background
The idea of establisliing a large urbaii settlement in the "heart of Samaria" was first raised in 1973by a
group of future settlers comprised of employees of the aircraft iiidustry.The proposal was preseiited to
tlîenMinister of Defense Moshe Dayan. Althougli Dayan was inprinciple in favor of the idea, it proved
impossible to realize the plans because the location proposed by the group was incompatible with the
Aloii Plan, wliich was inforinally adopted by the Ma'aracligovernment.?"
After tlie Likud came to power in 1977, a change occurred in government policy, and initiatives were
introduced to establish settleinents throughout the West Bank. Tlie Drobless Plan, which guided the
activities of the government and the World Zioiiist Organizatioil,proposed the establishinent of a large
settleiiient on the Trans-Sainaria Highway (see Road No. 505 oii the map), in part for strategic and
inilitary rea~ons.:'~Given the sympathetic approach of the govei-nment,thegroup of would-be settlers
that had contacted Dayan, calling themselves the Tel-Aviv Group, once again met and renewed their
initiative. In October 1977,the Ministerial Committee for Settlement approved the establisliment of a
settleinent by the naine of Heres (tlie naine was later clianged to Ari'el)on a site to tlie soutli of Haris
Village.The inembers of the group subscquently received permission to settle in tliis l~cation."~
270. Foi.cxainplc, sec an iiitcivicw with Foreign Minister (at tlic tiine of thc iicgotiations) Sliloino 13cn-Anii:Ari Sliavit. "The Day I'cacc
Dicd," ffuir~rf: Siipplcrnent. 14Scptciiibcr2001.
271.Estlicr Lcviiic,41.i'cl- Cupi~ulqfSuincrrin (in Hcbrcw) (Pliiladclphia. 1990),p. 14.
272.Mn~itiyahliDi-oblcss.TheSefllenicirfiiiJitdeu undSui17cri-in.
273. Esthçr Lcviiic.Ari'el- Col~itcrclfScrnrcrriu,p. 44.The first forty settlers arrived on the approved site 011 17 August 1978. At the instructions of then
Miiiister of Agriciilture Ariel Sharon, the site was defined as a military base, and initially included
some one hiiiidred temporary buildings. Sliortly tliereafter, tlie Rural Construction Authority of the
Ministry of Constri~ctioiiand Housiiiç began to build pennanent acc~mmodation.?~~ 111addition to
implementing construction and iiifiastructure, the Ministry of Construction and Housing team also
worked in cooperation witli the Tel Aviv Group iii al1 iiiatters relatiiig to the administration and
organization of the ilew settlement. Iii 1981,Ari'el wasdeclared a local couiicil and began to function
in an autonoinous maiiner.
Tlianks togenerous assistance from the governineiit, the settlemeiitdeveloped rapidly. During the 1980s
and 1990s, iiumerous officia1iiistitutioiis opeiied iii Ari'el,including elementary and high schools, an
academic college, a religious council, a municipal coilit, a police station and so on. In 1996, witli the
support of the Ministry of Industry aiid Trade, ail additional industrial zone was established in Ari'el
alongside Barqaii Iiidustrial
Followiiig the cornineilcement of the wave of immigratioii froin the former Soviet Unioii in the early
1990s, thousands of iminigraiits were directed to Ari'el,considerably increasing the population of the
settlement. In June 1998, as a result of this growth, tlien OC Central Cornmaiid Uzi Dayan sigiied an
order chaiiging the status of Ari'el from a local couiicil to a inuiiicipality. As of September 2001, the
Central Bureau of Statistics estimates the population of Ari'elat 15,900 residents. approximately forty
percent of wliom are iinmigraiits from the former Soviet Union. In addition, some 6,000 students attend
Ari'elCollege, someof whom live in tlie settlemeiit on a temporary basis.
B. The Geographical Context
As noted, Ari'elis situated in the center of Samaria. lialfway between Nablus and Rarnallah, and to tlie
west of the watershed line (tlie peaks of the mountain raiigecrossing tlie West Bank). In ternis of the
road iietwork,Ari'el lies adjacent toan important iiitersection between Road No. 5 (the Traiis-Sainaria
1-Iighway),which extends from Westto east, andRoad No. 60, wliich crosses the lengtliof the WestBank
fiom nortli to south.
Ari'el is surrounded on al1 sides by Palestinian towiis and villages. To tlie south lies the town of
Salfit (9,000),276 which fiinctions as the governmental, administrative and coinmercial ceiiter for al1the
Palestinian villages intlie vicinity.Tothe north ofAritel, and in close proxiiiiity, are four villages - Haris
(2,600), Kifl I-Iaris(2,700), Qira (900) and Marda (1,900); a little further to the north lie Jamma'in
(5,100), Zeita-Jamina'in (1,700) and Deir Istiya (3,300). To the east ofArilel lie the villages of Iskaka
(900) and then Yasuf(1,500), and on the western edge of the area ofjurisdictionof Ari'el lie the villages
of Brukin (3,100) and Kafr Ad-Dik (4,400).
To the east and west of Ari'el, and iiiterspersed amoiig tlie above-inentioned Palestiiiiaii villages, tliere
are a nuinber of settlements. To the east, on Road No. 60, lie Tapuah (350) and Rehelirn (110population
--.. . . -.. . .
273. Lcttci. frorn Aricl Sliaroii io ihc Minisi- of Consti-~ictio~aind Housiiig datcd July 21, 1978. as wcll as tbc iiiiniitcs of a iiiccting froni
Scptciiibcr 2. 1979(in /Ir.i'el- Cupir(r1qiop,. 140. 137).
275. Foi.dct;iils of tlic iiistitutioiis and tlic dates of opcning. sec tlic Wcbsitc of thc Muiiicipality of'Ari'cl,www.aricl.iiiiini.il.
276. Uiilcss othcrwisc statcd, the figui-CSiiiparcnthcscs arc ihc cstiinatcd nuinbcr of rcsidcnts as of tlic end of 2001.data available), which form part of the Mountain Strip. To the west of Ari'el lienumerous settleinents
arrangedin a fuiinelshape(seeCliapter Seven) that constitute the high demand area of the WesternHills.
The closest settlements to Ari'el are Barqan(1,300), Revava (550) and Qiryat Netafim (300).
C. Seizing Control of Land
Research undertaken by B'Tselemshows that most of the land included in the area of jurisdiction of
Ari'elwas declared and registered as state land over the years (see Chapter Th~ee).~"Altliough it is iiot
possible to reconstruct precisely the situation prior to the establishment of the settlement, the research
showsthat a substantialpart ofthis land, and particularly the area onwhich Ari'elis actually coiisti-ucted,
was foilnerly uncultivated, rocky laiid used by the villagers to graze tlieir flocks. As sliowii by the
testirnonies collected during the course of the research, however, Israel also expropriated land that
was farmed by Palestinians, claimiiig it to be state land, and this land was iiicluded withiii the area of
jurisdiction of Ari'el.
In otliercases, Israel seized coiitrol of cultivated lan- which it acknowledged to be private Palestinian
property - for the puipose of expandiiig the network of roads connectingAri'elwith Israel and with the
adjacent settlements (see below, in the discussioii of the iiew Traiis-Samaria Highway and Road No.
447). In tliese instances, the niilitary coinmanders sigiied expropriation orders.
The agricultural produce yielded by crops on tliis fanned land was usedby the owners of the land, botli
for tlieir own consumption and for commercial marketing. The seizure of coiitrol of this land deprived
these families of an important source of livelihood - in some cases, their only source - aiid severely
impaired tlieirstandard of living.
D. Municipal Boundaries
The municipal boundaries of Ari'elhave been revised several tiines since its establishment. The most
receiit revisioii was undertaken in Julie 1999 by means of an order signed by the then coinmanding
officer of the Central Command, Moslie Ya'alon,acconipanied by a map including a total area of soine
13,800 dunaiii in the area of the settlement. Of this area, approximately 3,000 dunam are built-up,
or are in the process of coiistruction, i.e., twenty-two percent of the total area of jurisdiction. Ari'el's
area of jurisdiction extends over some eleven kilometers froin east to west, witli a maximum width of
2.5 kilometers. Tlie leiigth of this area is exceptional even by comparisoii with major Israeli cities of
coinparable population.
Tlie municipal boundaries of Ari'el arecoiivoluted andjagged. Land cultivated by Palestiniaiis (inostly
olive çroves) exists withiii the settlement. The reason for this is that Israel was unable to declare theni
state land. This situation also created "islands" or "peninsulas" of Palestiiiian ownership within the area
of jurisdiction of Ari'el,wliicli surrouiids the Palestiiiian lands on tliree sides. The reverse is also true:
277. This rcscarcli \!,as hascd oii rlic tcstiinoiiics of rcsidciits of the Palcstinian \,illagcs adjacent to Ari'cl. and oii iiifoi-{nationprovidcd by
the Municipaliiy ol'Salfit. R'Tsclcniaskcd ilic Isracl Lands Adininistration and ihc Muiiiciliality ofAri'cl to providc inroniiation clasifling the
siatiis of ihc laiid foriniiig thc arca of'jur~sdictioiiof Ari'cl.biit did noi rcccivc any rcsponsc.tliereare cases in wliicllparts of thejurisdictioiial area ofAri'el are surrounded by Palestinian farmland.
These pl-ienomenaalso exist elsewhere in the West
These Palestiiliaii-owned islands within the non-built-up part of the area of jurisdiction will apparently
be eliminated and efîectively annexed to Ari'el, as the area around the island becomes built-up and
populated. An exaiiiple may already be noted of such annexatioil, relating to a large Palestilliail island
situated to the south of the main built-up area of Ari'el(see coordinate D-6 in Photo 20). While the map
of the area of jiirisdiction of Ari'el attached to the military order shows tliis area as private Palestinian
land, tlie Municipality of Ari'el lias constructed a security road surrounding this area, effectively
annexiiig it to the settlemeilt. Moreover, the inunicipality's outline plans - as distinct frorn the map of
the area ofjurisdiction attached to the military order - completely eliininate tliis island. The area appears
as an integral part ofAri'el.
E. Urban Sprawl
Diagrain 9 offers a graphic depiction of the urban developmeilt of Ari'el in chronological terms, as
reflected in tlie outliiie plans of the settlemeiit. A review of this diagram shows a clear intention on
the part of the planners to maxiinize the dispersion aloilg the east-west axis, by means of extending
"wedges" to eitlier extreme of the area of jurisdiction, and then gradually filling the open spaces
reinaiiling within these bouiidaries. Accordiiigly, after the consolidation of the initial settling group,
approximately inthe center of the present area ofjurisdiction, the area iiow occupied by Ari'elCollege at
tlieeast end of the area ofjurisdiction was developed. Only during the years that followed was the space
between the central core and the eastei-iledge gradually filled. Similarly, in the mid-1990s, work began
to build a new industrial zoiie on the western edçe ofArilel. The next residential neigliborlioodplanned
for constniction (see the last picture in the diagram) is situated between tliis iiew industrial compound
and the western edge of the current built-up area.
The leiigth of the c~ii-reiitbuilt-up area is approximately five kilometers (from the college to the
entrailce road to Ari'el), while its width is only soine seven hundred ineters. In urban plailning terms,
tliis dispersion iscompletely uiireasonable and illogical. Modern planning approaches favor the most
compact urbaii dispersion attainable, enabling residents to reacli as many parts of the cominunity as
possible on foot.
The urireasonable nature of this dispersion in urban tei-insis even more proiiounced be'causethe area
of jurisdiction of Ari'el includes extensive areas adjacent to tlie original site of the settlement (inaiilly
to the soutli)that could have been used for expansion. The conclusion to be drawii from this situation
is tliat tlie Israeli planning system was based not on urbaii planning consideratioils, but oii extraiieous
considerations, as discussed below. One of these considerations was to create as long a ban-ier as
possible separatiiig the Palestinian coinmunities on either side of the Trans-Samaria Highway aiid
disi-uptingthe territorial contiguiîy of this area.
278. For discussioii of Illisl>hiithe case of Ma'alcAduintniin. scc R'Tsclciii.Oit!lie M:a). l>.33-34~ioiîp' .I .- ..Ari'el:view from the southeast
i-r_tt; ':6 Caravans in the area east ofAritelwitliJamma'inin the backgroundT"iaato 34 Pllysical roadblock at entrailce to Yasuf
PIPo::~ 'X Sewage from Ari'elflowing toward Salfit'spumping stationFkoeù ?3 Ari'eland SalfitPhaPo 20 Ari'eland surrounding areas
Area ofjuisdiction ofAri'el
C] Planned neighbor-Arirel
Road
a Road iluinber
m AreaA boundary
Area B boundary
River bedE%hoto 21 On the bridge: Road No. 447 1 Under the bridge: the Iskaka-Salfit road
Photo 22 Area planned for expansion ofAri'elPt~oQa23 Houses in Arilel: view from the settlement's ring roadF. Harm to the Development of Salfit
The location of Ari'elprevents tlie creation of a coiitigiious urban space that could otherwise have
developed througli the expansion of Salfit to the iiorth and iiortlieast, coiinecting to Haris, Kifl Haris,
Qira, Marda andIskaka. As a result ofIsrael'spolicy, the borders of Ari'elconstitute a kind of physical
barrier stopping such a process aiid almost totally block the urbaii developnieiit of Salfit. The current
population of Salfitis approximately 9,000, and the annual growth rate is approximately 3.5 percent.
According tothe municipal engineer,SamirMasri, tlie lack of available landsuitable for constnictioii is
worsening each year, andis already reflected in a housing shortage and in the decision of maiiy young
residents to leavetlieto~n.~'~
Because of the topograpliic and liydrologic cliaracteristics of the Salfit area, the only reasoiiable
direction of expansion is to tlie north. The areas to the south, southeast and southwest of Salfit are
niountainous and extremely steep. Preparing such areas for constnictioii would require enormous
fiiiancial and technical resources, and would cause irreparable dainage to the laiidscape. The area to
tlie west of Salfit is rich in underground water reserves providiiig a considerable part of the resideiits'
water needs (see below), and is also exploited by Israel. Coiistniction in tliis area would damage these
reseives as well as the crops currently grown inthis area. While the area tothe east of Salfit issuitable
for construction in teniis of the topograpliic conditions, it is currently inteiisively farrned by residents
of the town, who growthousands of olive trees that provide their most important source of iiiconie.
Approximately fifteen percent of the areaofjurisdiction of Salfit (tlie northernedge of which is sliown
by the border ofAreaA) is cui-rentlyfree for construction, but abouthalf of tliisarea is owned by a small
nunîber of residents of Salfit and is thereforenot available for construction.280
The negative influeiiceof Ari'elon tlie residents of Salfit is not confined solely to the question of laiid
and the housing sliortage, but also includes sucli aspects as the pollution of tlie underground water
sources serviiigSalfit.Mostof the sewage created by Ari'el flowsinto a riverbed at thewesteni entrance
to tlie settlement, and then continues to flow to the southwest (see Photo 20). Tliis sewage cliannel,
which seeps iiitothe soi1and mixes witli thespring water stored in tlie aquifer,passesjust a few meters
from a puinping station supplying most of tlie water used for doinestic coiisumptionby the residents of
Saifit(see Photo 18).According tothe water engineerof Salfit, SalahAfaiii,tliissewagecliannelpollutes
the water, and lie must occasionally order the municipality to stop pumping after routine inspections
reveal particularly liigh levels of pollution.
G. The Regional Road Network
As iiotedabove, the town of Salfitfuiictioiisas an administrative and commercial center for the villages
in the area, and particularly for tlie villages situated to the iiortli: Haris, Kifl Haris, Qira, Marda,
Jainma'in,Zeita-Jamma'inand Deir Istiya. The presence of Ari'elsignificantlyrestricts access routes to
aiid from Salfit.
279. Tliis iiiforiiiationwas givcii to B'Tsclcniduring a Lotirof Salfit hcld bythe organization on 31 Dccciiiber2001
280. Tliis iiiforinatioiiwas providcd to B'Tsclciiiby the Miiiiicipalityof Salfir.Until the outbreak of the al-Aqsa iiitifada, the main access road to Salfit was the road that forks from
the entralice road to Ari'el, veers to the Westaiid then leads south to Salfit (see Photo 20). Since the
begin~iingof the intifada, the IDF has blocked access to tliis road by means of concrete blocks and dirt
piles. If the planned expaiision of Ari'el tothe West(see Diagram 9) is realized, this road will pass
through the built-up area of Ari'eland Palestinian traffic along this artery will be completely banned.
The restricted volume of traffic that currently passes between Salfit and the villages to the north takes
place to tlie east, along a dii-troad beginning on Road No. 60 to the south of the settlement of Tapuah,
and leading Westthrough the villages of Yasuf and Iskaka. Although tlie entrance to this road has also
been blocked since tlie outbreak of the intifada, Palestiniaii residents reach the point of the blockage
(to tlie east of Yasuf),go round this point on foot, and then continue toward Salfit (see Photo 17).Even
witlioutthe current blockages, this road is long and unsuitable as a principal traffic arterybetween Salfit
andthe villages tothe iiortli.However, as noted, this isthe situation tliatwillpresumably emerge ifAri'el
is expanded to the west as planned.
For example, the lengtliof the road froni the southeni exit of Kifl Haris to the western entrance of Salfit,
which tlie residents of these cominuiiities used until tlie outbreak of the intifada, is some 3,500 ineters.
The alternateroad, on tlieother hand, requires tlieresidents of Kifl Haris to go to Route No. 60 and cross
througli the villages of Yasuf and Iskaka, a distance of some twenty kilometers.
The many restrictions 011 Palestinian movement and the minimal road network available to thein
is particularly striking in view of the enoimous resources invested by Israel in order to meet the
transportation iieeds of the settlers in general, and the residents of Ari'el in particular. This is clearly
illustrated by two roads recently constructed in the vicinity of Ari'el that have severely hanned tlie
Palestinian population.
The first example is the iiew alignment of tlie Traiis-Samaria Highway, which connects Ari'eland the
adjacent settlements to Tel-Aviv and the Tel-Aviv Metropolis. The old Trans-Saniaria Higkway (Road
No. 505) crosses the villages of Mas-ha and Biddya, and Israel therefore decided to build a iiew road
a few huiidred ineters to the south in order to circumvent these villages, aiid to upgrade tlie road to a
four-lane highway. For the purpose of constructiiig the road, Israel expropriated extensive land from
Palestinian residents in the area, and caused considcrable eiiviroiiinental dainage by bisecting al1tlie
Iiillssituated aloiig the course of the road. Since the beginning of the intifada, as part of Israel's policy
of "clearing"territory, theIDF liasuprooted numerous olive trees alongthe sides of tliisroad in order to
reduce the dangers facing settlers using the road (see coordinates C-3, C-4, C-5, B-6 in Plioto 20).?*'
An additional example is Road No. 447, which is due to be coinpleted shortly. This road connects
the easteni edge of Ari'el to RoadNo. 60 close to the settleinent of Revava (see Plioto 21). For the
purpose of its construction, some seventy-five dunain belonging to the residents of Iskaka and Salfit
were expropriated, and over one thousand olive trees were uprooted, most of them extremely old
and Iiiglilyproductive. This road is supposed to seive the bloc of settlements consisting of Eli, Shi10
(including Slievut Raliel) and Ma'ale Levona,and will shorten the journey to Ari'el by a few minutes.
The Palestinians whose laiid was expropriated petitioned theHigli Court of Justice, seeking to prevent
281.For dctails of this policy as iinplcrricntcdin ilicGaza Strip, sec B'Tsclcin.fl f'olicj,14Desrrlrction:Hou(i Uaino1i1i0n.rsrrldDe.s/ri~~./i»
Agric~ilrurl~11izrheGuzo Srrip(Inforiiiation Shcct. Fcbruary2002). coiistiuctioiiof tlieroad. The Court rejected thepetition, without detailing its reasoiis. The lacoilicruling
of Justice Matza siinply States:"Regarding this matter, we have formed the conclusioii that there is no
rooiii for tlie Court to intervene in the decision of the Respondent~."~~~
282 HCJ0011451,loluh Xbd Al-lludr et ol I,S~r~~ienPlelun17rr1go~rnc~oI17dCornn~onderof /DI: fi~ice,11Jtrd~cioiîdSon~orru Diagram 9
Incremental Growth ofAri'el:Dates of Outline Plan
* ,
* - On eve of approval
Built-up area
Plani~edareaConclusions
Israel lias createdin the Occupied Territories a regime of separation based on discrimiiiation, applying
two separate systenis of law in the same area and basing the rights of iiidividuals on tlieir nationality.
This regime is the only one of its kind in the world, and is reminiscent of distastef~~r legiines from the
past, suc11as the apartheid regime iii South Africa.
The discrimiilation against Palestinians is apparent in almost al1fields of activity of the occupation
authorities,starting from the inethods used by Israel to seize coiitrolof the land011 which the settlemeiits
are established,to the separateplanning institutions forPalestinians and for Israelis, to the application of
Israeli law to thesettlers and settleineiits wliile thePalestinian populatioil remains subject to themilitary
legislatioii.
Uiider this regime, Israel has stolen Iiundreds of thousands of dunain of land from tlie Palestinians.
Israel has used this land to establish dozens of settlements in the WestBank and to populate them with
liundreds of thousands of Israeli citizens. The mariner of dispersion of settlements over extensive areas
of the WestBank inlierently creates numerous violations of the Palestinians' legal rights.As the report
liasdenionstrated, the drastic change that Israel has made in tliemap of tlie WestBank prevents aiiyreal
possibility for tlie establishment of an independent, viable Palestinian state as part of the Palestinians'
right to self-deterinination.
The settlers, on the coiitrary, beiiefit from al1the riglits available to Israeli citizens living witliin the
Green Liiie,and insoine casesare even granted additional rights. The great effort that Israel liasinvested
in the settleiiieiit entei-pri-e iii financial, legal and bureaucratic tems - has turned the settlements
into civilian enclaves in an area under military rule, with the settlers beiiig given preferential status.
To perpetuate this situatioii, which isn priorii llegal, Israel liascontinuously breaclled the riglits of the
Palestinians.
Parlicularly evident is Israel'smanipulative use of legal tools in order to give tliesettlement entcrprise an
impressionof legality.WlienJordanian legislation seived Israel'sgoals, Israel adlieredto this legislation,
arguing that international law obliges it to respect the legislation in effect priorto the occupation; in
practice, tliis legislation wasused in a cynical and biased manner. On the otlierhand, when Jordanian
legislation interfered with Israel's plans, it wchanged in a cavalierinanner through military legislation,
and Israel establishednewrules to serveits iiiterests.In so doing, Israeltrampled onnumerous restrictions
aiidprohibitions establisliedin the internationalconventions towliichit isparty, and wliich wereiiitended
to liinit iiifringeinentof liumanrights and protect populations under occupation.
The responsibility for the infringement of liumanrights created by the existence of the settlenients rests,
first aiid foremost, witli al1the Israeli governments silice the occupatioiibegan. It is the governinent tliat
iiiitiated theestablislimeiit of the settleii~eiits,provided political, organizational and econoinic support,
and encouraged tlieir continual expansion. Thejustices of the Israeli Supreme Court are senior partilers
in this respoiisibility: in their rulings, they provided the settlenient enterprise witli a legal stamp of
approval by approving improper acts by the gove~~imeiia tnd the IDF in certain cases. and by refusing
to interveiie in otliers to preventharm to the Palestiiiiailresidents.Since the outbreak of the al-Aqsa intifada, the settlers have been continuous targets for attacks by
Palestiiiians. As a result, sonie settlers have waiited to returii to live inside Israel and have asked
the govenlment to provide assistance to help them relocate. Despite the authorities' responsibility
resulting froin their long-standing policies regarding tliesettleinents, the state has refused to provide any
assistance for settlers to return to Israel as long as their relocation is not part of a political settle~iient.~~~
This refusa1makes tliose settlers who wish to leave hostages of the illegal policy pursued by the State
of Israel.
Becatlse these~tlementswere illegalJi-onithe outset, andgiven Ihe infi-ingementof human 1-ightscaused
by theirpresence, B'Eelem dernands that the Israeli government act to disniantle al1the settlements.
Thedismnntling must fakeplace in a mannei-that respects the huniun rights oflhe settlels, including the
pnymcnl qf comnpensation.
Evacuation of al1the settlements is clearly a coinplex task that will require tiine. However, tliere are
interim steps that can be taken immediately to reduce to a minimum the infringement of human rights
and the violation of international law.The Tsraeligovernment inust take, inter alia, the following steps:
Cease al1new constniction in the settleinents, either to build new settlements or to expalid existing
settlements;
Freeze the planning and construction of new bypass roads, aiid cease expropriation and seizure of
land for tliispurpose;
Retuni to the Palestinian conimuiiities al1the non-built-up areas within tlie municipal boundaries of
tlie settlements and the regional councils;
Abolis11the special planning coinmittees in the settlements, and lience the powers of the local
authorities to prepare outline plans and issue building perinits;
Cease the policy of providing incentives that encourage Israeli citizeiis to inove to the settlements,
aiid direct these resources to encourage settlers to relocate to areas within the borders of the State of
Israel.
283. MK Anat Maor siibmiticd a proposcd law bcforc ihc Kncssct that providcs for coinpcnsalion for scttlcrs who dccidc to lcavc the
scttlcniciits. The Kncssct votcd to rejcct tlic bill (Proposcd Bill: Conipcnsatioii for Evacuatcd Kcsidcnts from Judca, Saniaria, the CiazaStrip
and tlic Golan Hcights Law, 5760-1999,4 July 2001).ByTselem Publications
Comprehensive Studies
May 2002 Land Grab: Israel'sSettlement Policy in the West Bank
January 2000 Israeli Violations of Huinan Rights of Lebanesc Civilians
September 1999 Builders of Zion:uman Rights Violations of Palestinians froin the Occupied
Territories Working in lsrael and the Settlements
February 1998 Routine Torture: lnterrogation Methods of the General Security Service
July 1997 Prisoners of Peace: Adininistrative Detentioning the Oslo Process
March 1997 Israeli Settlement in the Occupiedrritories as a Violation of Human Rights:
Legal and Conceptual Aspects
August 1995 Ncither Law Nor Justice:Extrajudicial Puriishincnt,Abduction, Unlawful Arrest,
and Torture of Palestinian Residents of the West Bank by the Palestinian
Preventive Security Service
May 1995 A Policy of Discrimination: Land Expropriation, Planning and Building in East
Jerusalem
March 1994 Law Enforceinent vis-a-vis Israeli Civilians iii the Occupied Territories
Januaiy 1994 Bi-Annual Report: Human RiglitsViolations in the Occupied Tcrritorics
199211993
January 1994 Collaborators in thOcciipied Territories: Human Rights Abuscs and Violations
Junc 1993 Deportaiion of Palestinians fioin the Occupied Territories and the Mass
Dcportatioii of Deceinber 1992
October 1992 Detained WitlioutTrial:Administraiive Detention in the Occupied Territories
since the Beginning of the Intifada
May 1992 Activity of Uiidercover Units in the Occupied Territories
March 1992 The Iiiterrogaiion of Palestinians During the Intifada: Follow-up to B'Tselein
Report of March 1991
January 1992 Bi-Annual Report: Violations of Human Rights in the Occupied Territories
1990/1991
The Interrogation of Palestinians duriiig the Intifada: Ill-Treatincnt, "Motieratc
Physical Pressure" or Torture?
Novernber 1990 Collective Punishinent in the West Bank and the Gaza Strip
July 1990 Thc Use of Firearms by the Security Forces in the Occupied Territories The System of Taxation in the WestBank and Gaza Strip as an Instrument
February 1990
for thc Enforcement of Authority during the Uprising
Decembcr 1989 Annual Report 1989 - Violationsof Human Rights inthe Occupied Territories
Noveinber 1989 The Military Judicial System in the WestBank
September 1989 Demolition and Scaling of Houses in the WestBank aiid the Gaza Strip as a
Punitive Measure during the Intifada
Information Sheets
March 2002 Trigger Happy: Unjustified Gunfire and the IDF's Open-Fire Regulations duriiig
the al-Aqsa Intifada
March 2002 Inipeding Medical Treatmeiit and Firing at Ambulances by IDF Soldiers in the
Occupied Territories
Februaiy 2002 Policy of Destruction: House Demolition and Destruction ofAgricultural Land in
tlie Gaza Strip
Deceinber 2001 Excessive Force:Huinan Rights Violations during IDFActions inArea A:
Beit Jala, 6 May 2001
Beit Rima, 24 October 2001
Bethlehem Area, 19-28 October 2001
October 2001 Free Rein: Vigilante Settlers and Israel'sNon-Enforcernent of the Law
J~ily2001 Not Even a Drop: The Watcr Crisis in Palcstinian Villages Without a Water
Network
July 2001 Torturc of Palestinian Minors in the Gush Etzion Police Station
June 2001 No Way Out:Mcdical Iinplications of Israel's Sicgc Policy
May 2001 Standard Routine: Bcatings and Abuse of Palcstinians by Israeli Security Forces
during the Al-Aqsa lntifada
March 2001 Tacit Conscnt: Israeli Law Enforccment on Settlers in the Occupicd Territorics
January 2001 Civilians Uiidcr Siege: Restrictionson Freedom of Moveineiit as Collective
Punishmcnt
Deceniber 2000 Illusions of Restraint: Huniaii Rights Violations During the Evcnts in the Occupied
Territories 29 Scpteniber- 2 Dcccmber 2000
July 1999 On the Way to Annexation: Hunian Rights Violations Resulting froin the
Establishnient and Expansion of the Ma'ale Adumim Settlement
May 1999 Oslo: Before andAfter: The Status of Hunian Riglits in the Occupied Territories
Noveinber 1998 Death Foretold: Firing of "Rubber" Bullets to Disperse Demonstrations in
the Occupied TerritoriesScptcmber 1998 Disputed Waters: Isracl'sResponsibility for the Water Shortagc in the Occupicd
Territories
May 1998 Divide and Rule: Prohibition onPassage between the Gaza Strip and the West
Bank
Scptcinber 1997 Demolishing Peace: Israel's Policy of Mass Deinolition of Palestinian Houses in
the WestBank
Sheer Brutality- The Beatings Contiiiue: Beatings aiid Maltreatinent of
Palestinians by Border Police and PoliceOfficers during May-August 1997
December 1996 Sexual Harassnient in the Name of the Law: Violence and Degradation during
Searches of Palestinian Homes in Hebron
Septeniber 1996 Beatings, Maltreatment and Degradation of Palestinians by lsraeli Authorities
during Jiine-Jiily 1996
April 1996 Without Liinits: Huinan Rights Violations under Closure
September 1995 Impossible Coexistence: Human Rights in Hebron Since the Massacre at the Cave
of the Patriarchs
July 1995 Incidents of Death alid InjuryResulting from Exploding Munitions'Reninants
November 1994 Torture during Interrogations: Tcstimony of Palestinian Detainees, Tcstimony of
Interrogators
Bureaucratic Harassincnt; Abuse and Maltreatmcnt During Operational
Activities in the West Bank in the First Yearof the Dcclaration of Principlcs
February 1994 Firing at Vehiclesby the Security Forces in the Occupied Territories
Jiine 1993 Thc Killing of Palestinian Children and thc Open-Fire Rcgulations
May 1993 House Dcmolitioii during Operations against Wanted Persons
April 1993 The Closure of the West Bank and Gaza Strip: Human Rights Violations agaiiist
Residcnts of the Occupicd Territories
January 1992 Limitations on the Right to Deinonstralc and Protcst in the Territories
September-October 1991 Renewal of Deportation of Woinen andChildren froin the West Bank onAccount
of"lllegal Residency"
June 1991 The Death of a Youth: Mahmud'Alayan;Maltreatnient by an Incoine Tax Clerk;
Pressure on Fainilies of WantedPersons
January-February 1991 Human Rights in the Occupied Territories during the Warin the Persian Gulf
Novcinbcr 1990 House Scaling and Deinolition as a Meaiis of Punishincnt
October 1990 Loss of Control: The Temple Mount Eveiits -Preliiniriary Invcstigation
Septcnibcr-October 1990 Closurc of Schools and Othcr Sctbacks to the Education Systcin in the Occupicd
TerritoriesNovembcr 1993 The "New Procedure" in CSS Interrogation: TheCase of 'AbdA-Nasser
'Ubeid
January 1992 Khan Yiinis,Dccember 1992
Septeinber 1992 The Death of Mustafa Barakat in the lntcrrogation Wing of the Tulkarnl
Prison
Joint and Miscellaneous Reports
July 1999 Families Torn Apart: Separationof Palestinian Fainilies in the Occupied Territories
(joint report issued with HaMoked: Center for the Defence ofhc Individual)
Cooperating against Justice: Humai1Rights Violations by lsrael and the Palestinian
National Authority followingthe Murders in Wadi Qelt (jointreport issued with
LAW)
March 1999 Captivc Corpses (joint report issued with HaMokcd: Center for the Dcfence ofthe
Individual)
Septeinber 1998 The Quiet Deportation Continues: Revocationof Residency and Denial of
Social Rights of East Jerusalein Palestinians (jointreport issued with HaMoked:
Center for the Defence of thendividual)
April 1997 The Quiet Deportation: Revocation of Residency of East Jemsa1en.r Palestinians
(joint report issued with HaMoked:Center for the Defence of theIndividual)
January 1997 Legitimizing Torture:The Israeli High Court of Justice Rulings in the Bilbeisi,
Haindan and Mubarak Cases
Deccmber 1996 Huinan Rights in the Occupied Territories since the Oslo Accords: Status Report
(joint report issued withThe Palestinianinan Rights Monitoring Croup)
Position Papers
January 2001 Israel's Assassinationolicy: Extra-judicial Executions
July 2000 Thirsty for a Solution: The Waterrisis in the Occupied Territories and its
Rcsolution in the Final-StatusAgreement
January 2000 Lcgislation Allowing the Use of Physical Force and Mental Coercioii in
Interrogations by the General SecurityServiceByTselem Quarterly for Human Rights in the Occupied Territories
May 200 1 Seventh Issue: Current Events
March 2000 Sixth Issue (Primary subject: Rights of the Child)
Deceinber 1999 Fifth Issue(Primary subject: Fiftieth Anniversary of the Geneva Convention)
October 1999 Fourth Issue (Primaiy subject: Workers in the Occupied Ten-itories)
June 1999 Third Issuc (Priinary subject: Water Shortage in thc Occupied Territories)
March 1999 Second Issue: Curreiit Events
Dcccmber 1998 First Issue: Fiftieth Aiiniversary of the Universal Dcclaration of Hiunan Rights
B'Tselem'sworlcis made possible by the support of tlie following bodies and foundations:
Christian Aid (UK), Cominissiori of thc European Coinmunities,
DanChurchAid (Deninark), EED (Gerinany), Ford Foundation (USA),
JCCO (Netherlands), International Coininission of Juri-tSwedisli Section,
Mertz Gilmore Fouildation (USA), New lsrael Fund (Isracl), Norwcgian Foreign Ministry.
Novib (Netherlands), Federal Department of Foreign Affaii-sof Switzerland ANNEX 13
B'Tselem (The IsraeliInformation Centre forHuman Rights in the
Occupied Territories),Behind the Barrier:Human Rights
Violations as a result of IsraeSeparation Barrier,April2003,
www.btselem.or~/Download/2003 -Behind -The -Barrier-Engdoc (.i.~D1nvv l7~2nili2~>7>~1~3;l~7~1T~D
B7Tselem - The Israeli Information Centerfor Human Rights inthe OccupiedTerritories
BehindThe Barrier
Human Rights Violations As a Result of Israel's SeparationBarrier
Position Paper
(02) 6749111 bar,(02) 6735599 lish ,93420 n3wiil ,(nly.li ;l8l;illrvulim
8Hata'asiya St. (4thFloor),Talpiot,Jerusalem 93420, Tel. (02) 6735599, Fax (02) 6749111
e-mail:mailO,btselem.org http://www.btselem.orgResearched and written by Yehezkel Lein
Edited by Yael Stein
Data coordination by Najib Abu Rokaya
Translated by Zvi Shulman
B'Tselem thanks Architect Eran Tarnir for his assistance in preparingthis document.
B'Tselem Board of Directors and Staff
Chair, Board of Directors:Anat Biletzki
Board: Hassan 'Abadi,Arieh Arnon,HenrietteDahan-Kalev,Nasser Darwish, Celso Garbaz,
Amnon Kapeliuk,Peretz Kidron, MenachemKlein, Victor Lederfarb, AvishaiMargalit,
Ayelet Ophir,DannyRubinstein,Nadera Shalhub-Kevorkian,Leon Shelef,Gila Svirsky,
Sharon Tal, Roni Talmor
Executive Director:Jessica Montell
Staff: 'AtefAbu a-Rob, Musa Abu Hashhash,Najib Abu Rokaya,Baha 'Alyan, Nimrod
Amzalak, 'Ali Daragmeh, KorinDegani,Eti Dry, RonDudai, Haneen 'Elias, ShirlyEran,
Ofir Feuerstein,Tomer Gardi, Heyder Ghanem,Rachel Greenspahn, Iyad Hadad,Maya
Johnston, YehezkelLien, Raslan Mahagna,Nabil Mekherez,MicolNitza, Eyal Raz, Sohad
Sakalla, Ronen Shnayderman,Zvi Shulman,Isaac Shuster,Yael Stein,ShlomiSwisa, Lior
Yavne, SuhaZeydIntroduction
In June 2002, the government of Israel decidedto erecta separation barrier near the Green
Line, to preventthe uncontrolled entry of Palestiniansfiom the West Bank into Israel. The
decision was inade followingthe unprecedentedincrease in the number of Palestinian attacks
against Israelis since the outbreakof the al-Aqsa intifada,particularly duringthe first half of
2002. The governmentdecided thatthe barrierwill be built around the entire West Bank To
date, liowever,the government has directedthe construction of only some 190kiloineters.
Accordingto the Ministry of Defense,the fust 145kilometers (Stage 1)are to be operational
by July 2003.
Most of the barrier's route does not run alongthe GreenLine, but passes through the West
Bank. Inthe sectionsthat run alongthe GreenLine, Israel plans on building a secondary
barrier a fewkilometerseast of the mainbarrier. In several areas, the winding route creates a
loopthat surroundsPalestinian villageson al1sides.The barrier will separate many
Palestiiiianvillages and turn soineof them into isolatedenclaves. In numerous locations, the
barrier will separatevillages fromfarmland belongingto theirresidents. B'Tselem estimates
that the barrier willikely cause direct harmto at least210,000Palestiniansresiding in sixty-
seven villages,towns, and cities.
This position paperanalyzesthe repercussionsofthe proposed barrier on the Palestinian
population andthe human cost entailed in erecting it alongthe planned route. We shall also
examinethe legality of the barrier, as currentlyplanned, interms of international law. The
goal of tliis paper is to wam oftlieviolations of humai1riglitsand of international law
inherent in settingthe barrier's route insidethe West Bank. As construction of the first section
of the barrier has not yetbeen completed, andwork onthe other sections has not yet begun, it
is still possibleto prevent these violations.Factual Background
Formulating the barrierplan
The idea of erectinga barrierto physically separate the West Bank from Israel in order to
limitunmonitored entry of Palestiniansinto Israel has been around in various forms for years.
The barrier was supposedto be erected in what is referredto as the "seam area," a strip of
laiidextendingalongthe two sides of the Green Line.
In March 1996,tlie government decidedto establishcheckpoints along the seam area (similar
to the Erez checkpoint, in the GazaStrip),through which Palestinians would enterIsrael.
Alternative access routes wereto be blocked. Following this decision, theMinistry of Public
Security decided, in 1997,to assign special Border Police units to operate alongthe seam
area. The task ofthese units was to preventthe infiltration of Palestinians into Israel. These
decisionswere only partially implemented.'Followingthe outbreak of the al-Aqsa Intifada, in
late September2000, the governmentmade a number of decisionsthat ultimately led to the
current separation-barrierplan.
IiiNovember 2000, the tlienprime minister, Ehud Barak, approved a plan to establish a
"barrier to preventthe passage of motor vehicles" fromthe northwest end of the West Bank to
tlie Latrunarea. Many months passed before implementationof the plan began. In June 2001,
Prime Minister Ariel Sharonestablished a steering cornmittee,headed byNational Security
Council directorUziDayan, to formulatea set of measuresto prevent Palestinians from
infiltrating into Israel acrossthe seam area. On 18July 2001, the Ministerial Committee for
Security Matters (hereafter: the Cabinet) approved the steering committee's
recominendations.
According to tlie Cabinet's decision,the IDF is responsible for protectingthe eastern side of
the seain areathrough a "task command" that will coordinatethe activity,while the Border
Police is responsibleforthe western side.Thetwo bodies are to coordinatetheir efforts fully
and the number of forces inthe seam area isto be significantly increased.The Cabinetalso
decidedto implementthe November 2000 decision regardingthe barrier against motor
vehicles and to erect a barrier to preventthe passage of people onfoot in selected sectionsthat
are deemed high-risk areas.*
Erection of thebarrierto prevent the passage of motor vehicles began followingtlie decision
of Julie2001. To date, tlieDepartment of Public Works and the ConstructionDepartinent of
the Defense Ministry have completed a metal security railingalongthe selectedsection,
1 State Comptroller,AuditReport on the Seam Area (in Hebrew), Report No. 2 (Jerusalem, July
2002), pp. 10-12.
2 Ibid.,pp.13-18. $4
wliicliruiisfrornthe northwest edge of the West Bank to the Latrun area. As of April2002,
some nine montlisafterthe Cabinet's decision, tlie governmentliastaken alinost no action to
irnplementitsdecision on the barrier to prevent pedestrians fromentering Israel.
On 14April2002, the Cabinet again discussedthe matter. This time, it decidedto establisha
permanent barrier inthe searnarea to "improve andreinforcethe readiness and operational
capability incopingwith terrorism." The decisionfurther directedthat a ministerial
committee headed bythe prime minister monitor implementationofthe decision.The Cabinet
alsodecidedto begin immediateconstruction of a temporary barrier inthree sectors: east of
Umm el-Fahm, around Tulkarm, and in ~erusalem.~To implementthis decision, tlie Seam
Area Administration,headed by the director general ofthe Ministry of Defense, was
established.
A fewdays later, the IDF took control of Palestinian-ownedland in several locations
in the northwest West Bank forthe purpose of erectingthe temporary barrier, and
began to uproot trees and levelthe earth along the planned route. However,the
decision to erect the temporary barrier was not implemented. Inthe sector south of
Tulkarm, work stopped afterthe land was leveled and thetreesuprooted, and some of
the expropriationorders were nullified. Within a few weeks afterthat, the IDFtook
control of other land and began work on erectingthe permanent barrier along a
different route.4
In earlyJune 2002, the SeamArea Administration finished formulatingthe plan to
build the firstsection of the permanent barrier,which was to run from the northwest
edge of the West Bank,near the Israeli villageof Sallem,to the Israeli settlement of
Elqana in the south. In addition, aplan was devisedto build a barrier around
Jerusalem (hereafter:the Jerusalem envelope).Theplan included a concrete proposa1
to constructsections north and south ofthe city.
On 23 June 2002, the government approvedtheplan in principle. The decision stated
that, "The precise and finalroute will be determined by theprime minister and the
ministerof defense." The government also stated that, inthe event of a dispute over
the route, the Cabinetwould resolve the natter.^
3 Decision 64/B, section E.
4 Residents of the villages that wereharmed by the temporary fence south of Tulkarm petitioned the
High Court of Justice. The Court rejected the petition. HCJ 37Kafr a-Raset al.v.Conznzanderof
IDF Forces in Judea and Samaria et al.
5 Government Decision 2077.The Cabinet convened on 14August 2002 to discussthe route proposed by the Seam
Area Administration.At the meeting, the Cabinet approved the final route for Stage 1
of the barrier, which would span 116kilometers, including ninety-six kilometers fiom
Sallemto Elqana andtwenty kilometersforthe Jerusalemenvelope(in the northern
and southernsectionsonly). The length ofthe route in Stage 1has increased since the
Cabinet's decision, for various reasons (seePart 3), and is now approximately 145
kilo me ter^.^
Infrastructure and construction work along most ofthe approved route has begun, but
only a ten-kilometer stretch ofthe barrier near Umm el-Fahm has been cornpleted .7
TheMinistryof Defenseestimatesthat Stage 1of the barrier will be completed by
July 2003.~In January2003,the MinistryofDefense began infrastructurework along
an additional forty-fivekilometer stretch of the barrier, fiom Sallem eastward to
Faqu'a, that was not included in the Cabinet's decision of August 2002.~
Components of the barrier
Themain componentof the barrier is an electronicfence that will givewarning of
every attemptto cross it. Along the east side of the fence is a "service road" bordered
by a barbed-wire fence. East of the service road is a "trench or other means intended
to prevent motor vehiclesfrom crashinginto and through the fence."1°Theplan calls
for three paths to the west of the fence: "a trace road, intended to reveal the footprints
of a person who crossed the fence, a patrol road, and an annored vehicles road."
Another barbed-wirefence will be constructedalongthis path.
The average width of the barrier complexis sixty meters. Due to topographic
constraints, a narrower barrier will be erected in some areas and will not include al1of
the elements that supportthe electronic fence. However, as the state indicated to the
High Court ofJustice, "in certaincases,the ba.rrierwill reach a width of onehundred
meters due to the topographic conditions."
6 This figure isbased ona digital measurementmade by B'Tselem.
7 Felix Frisch, "Israel Plans:Taxto be imposedon Palestinianswho enter Israel," Y-net,4 March
2003.
8
9 Letter of 12Febmary 2003 fromthe Defense Ministry's spokespersonto B'Tselem.
Amos Harel,"Constmction of the SeparationFenceBegins between Gilboa Villages andthe West
1Onk," Ha'aretz,28 Januaiy 2003.
The informationon the barrier's components is based onthe state's responsein HCJ 7784102,Sa'al
'Awani 'Abdal Hadi et al.v.Commanderof IDFForces in the WestBank (hereafter: al-Hadi),sec.23.In the sectionsthat run along the Green Line, and in a fewother areas, the plan calls
for an additional barrier to the east,referred to asthe "depth barrier." Accordingto the
state'sresponseto the High Court of Justice, "it is a barrier without a fence, intended
to direct movement in these areasto a number of security controlpoints." The
primary component of the depthbarrier is a deeptrench with a barbed-wirefence
alongsideit.
In some areas,the main barrier will bejoined by a wall to protect against gunfire or
anotherkind of impeding wall. A few years ago,the IDF erected gunfire-protection
walls betweentwo communities within Israel, Bat Hefer and Matan, and the
Palestinianvillages that are near them, Shweikehand Hablarespectively.The
Companythat is paving HighwayNo. 6 ("Trans-IsraelHighway") placed a gunfire-
protection wall along the section ofthe highway near Qalqiliya and plansto erect a
similarwall near Tulkarm. Inthe Jemalem envelopearea,two walls have already
been erected:one alongside Road 45 (the Begin-NorthRoad)along the sectionnear
Beit Haninael-Balad, and BirNabala, and anothernear Abu Dis on the eastern side of
Jerusalem's border.Another wall is planned near Rachel'stomb, in the southern
portion of the Jerusalem envelope.
The plan forthe barrier callsfor several gatesto enable passage ofpeople and goods.
One ofthe maps that the state submitted to the High Court of Justice contains five
main gatesalongthe barrier route in Stage 1(notincludingthe Jerusalemenvelope).
The map also includes twenty-six "agricultural gates" (seebelow), five of which are
placed alongthe depth barrier.
According to estimates made in June 2002 by the SeamArea Administration, the total
cost for Stage 1of the barrier, which stretches, accordingtothe originalroute, 116
kilometers, isNIS 942 million, i.e., NIS 8.1million a kilometer." However, the
director generalof the Ministry of Defense, Amos Yaron,recently estimatedthe per-
kilometer cost of the barrier at aboutNIS 1 O million.I2
The barrier's route and placement vis-a-vis towns and villages in the area
B'Tselein asked the Miilistry of Defense for a copy of the map of tlie route of the separation
barrier.The request was rejected. The spokesperson of the Ministry of Defense responded that
II State Coinptroller, Audit Report on Seanlp.30.
12 Frisch, "Israel Plans."tliat, "Publicatioii of tlie map has iiot beeiiaut~iorized."'In his reply to B'Tselem, tlie
Defense Ministry officia1in charge of implementationof the Freedom of Information Act
statedtliat, "Information cannot be provided otherthan wliat has appeared iiithe media."14
The lack of transparency regarding the path of the route flagrantlyviolatesthe rules of proper
administration and hampers iiiformedpublic debate on a project of long-term,far-reacliing
sigiiificance at a cost of hundreds of millions of shekels. The refusa1of the stateto provide the
map is especiallysurprising because the infrastructure and constructionwork along most of
tlie approvedsectionsof the route have already begun, andonce constructionwork begins, the
barrier's location becomes evident immediately.
Because the state has refused to provide the map, the barrier'sroute marked onthe attaclied
inap is based on the land-seizureorders given to Palestinians, mapsthat the State Attorney's
Office submitted to the HigliCourt of Justice, and physical observations made inthe areas in
which the barrier is under construction.
The inap does not includethe route of the Jerusalem envelope because, other than two
relatively small sections nearKafr 'Aqeb north of the city and nearRachel's tomb to the
soutli, land-seizure orders have not been issuedto Palestinians. Regarding the barrier's route
in the eastem and northwestern part ofthe Jerusalem envelope, it is unclear whether a
decision has beeiireached. The iinplicationsof the route alongthe Jerusalem envelopeare
liableto be far reacliing, both because of the size of the Palestinian population iiitlie area and
its great dependence on East Jerusalem, from which it will be severed afterthe barrier is
erected.
The map also does not includethe route ofthe northern section,which spans forty-five
kilometers from Sallemto Faqu'a, becausethe governmenthas refused to provide any
informationabout it. Physical observations madeby B'Tselem of the work iiithis area
indicatethat the route passes very closeto the Green Line.As a result, itappearsthat the
barrier in that areawill not leave many Palestinians, or much of their fmland, north of the
barrier.
The barrier's route passeswithin the West Bank, in some areas to a depth of sixto seven
kilometers.The size of the area between the main barrier and the Green Line along the route
between Sallem and Elqanais 96,500 dunam, of which 7,200 dunamarethe built-up area of
ten Settlements.The area of the fiveenclaves situated east of tlie barrier (seebelow) contains
ailotlier65,200 dunam. The barrier will affect 161,700dunam, whicli is 2.9 percent of the
laiidarea of the West Bank.
13
14Letter of 2 January 2003 from Defense Ministry Spokesperson Rachel Nidak-Ashkenazi.
Letter of 17February 2003 from A. Barak, senior assistant for public complaints.Tlie barrier's winding route, together withthe depth barrier, creates enclavesof Palestinian
coininunities in soine areas, and in other areas severs Palestinian resideiitsfrom their lands.
B'Tselem estimatesthat the barrierwill directly harm at least210,000Palestinians wlio live
iiisixty-seveiivillages, towns, and cities.
Palestinian enclaveswest of the barrier'"
The barrier's route createsfiveenclaves of Palestiniancommunitiesthat lie between the main
barrier and the Green Line. These enclaves, presented here from north to south, will be
separated from the rest of the WestBank andfrom eachother.Thirteen commuiiities,home to
11,700people, are included intliiscategory.
Tlie first enclave, locatedwest of Jenin, includes Barta'a a-Sharqiya (3,200), Umm a-Rihan
(400), Khirbat 'Abdallahal-Yunis(100), Khirbat a-Sheikh Sa'ad (200), and Khirbat Dhaher
al-Malah (200), a total of 4,100 residents.I6
The second enclave,east of the Arab-IsraelivillageBaqa al-Gharbiya, includesNazlat 'Issa
(2,300), Baqa a-Sharqiya (3,700),andNazlat Abu Nar (200), 6,200residents in all.
Khirbet Jubara, soutliof Tulkarm,which is ,home to 300 people, constitutesthe tliird
enclave.
The fourth enclave, near the settlementAlfe Menashe, south of Qalqiliya, includes Ras a-Tira
(300), Kliirbeta-Dab'a (200), and Arab a-Ramadeenal-Janubi (200), a total of 700 residents.
Tlie fifth enclave contains the northern neigliborhoodof Bethlehem (400), near Racliel's
tomb.
Palestinian enclaveseast of the barrier
The winding route of the separationbarrier, together withthe closureof areas as a result of
the depth barrier,will create five enclavesto the east of the main barrier. Likethe case of
enclaves to the west of the barrier,the barrierwill separatethese enclaves from the rest of the
West Bank andfrom each other.There are nineteen communities in this category, in whicli
128,500residents live.
Two enclaveswill be created betweenthe main barrier andthe trenches ofthe depth barrier.
Tlie first, in Jenin District, includesRummana (3,000), A-Tayba (2,l OO),and 'Aiiin(3,300),
coinprising a total of 8,400residents.
15
Although soinetowns and villages are locatedorthorsouthofthe barrier, forthesakeof
siinplicity,werefertothe communities locateb detweenthe barrierand theGreen Line as
16ommunities Westof the barrier."
The numbersinparentheses arepopulationestimates ofthePalestinianCentralBureauofStatistics
as of the endof2002.and arebased on the 1997 census.Tlie second and more significant enclave interms of size includes Sliweikehand Tulkarm
(41,000), tlieTulkarm refugee camp (12,100), Iktaba (1,800), Dennabeh (7,600),Nur Shams
refugee camp (7,000), Khirbeta-Tayyah (300), Kafa (300), 'Izbat Shufa(900), and Far'un
(2,900), a total of 73,900residents.
The third enclavewill be created by liermeticallyclosing Qalqiliya (38,200).
Tlie fourth enclave, south of Qalqiliya,will be surrounded by tlie main barrier onthree sides.
This enclaveincludes Habla (5,300), Ras 'Atiya (1,400), and 'Izbat Jalud(100), andhas a
total of 6,800people.
The fiftli enclave, a few kilometers further south, includes 'Azzun 'Atma(1,500) (seethe
discussion onthis village below).
Communitiesseparated from theirfarmland
Residents of dozens of Palestinian communities east of the main barrier or the depth barrier
will be separatedfrom a substantialportion oftheir farmland,which will remainto the west
of the barrier. This separationwill harm these residents, who have already lost landtliat was
seized on wliichthe barrieritselfwill be erected. The number of residents who will be directly
affected bybeing separatedfromtheir land due to the placement ofthe barrier depends of the
iiumber of Palestinians who own land on the other side of the barrier.I7This categorycontains
tliirty-six communities, inwhich 72,200people reside.
Ili Jenin District,the communitiesare Zabda (800), 'Araqa(2,000), al-Khuljan(400), Nazlat
a-Sheik Saa'eed(700), Tura a-Gharbiya ((1000), Tura a-Sharqiya (200), KliirbetMas'ud ((5),
KliirbetMentar (50), Umm Dar (500), and Dhaher al-'Abed (300), comprisinga total of 6,000
residents.
The communities in Tulkarm Districtare 'Akkaba (200), Qaffin (8,000),Nazlat al-Wusta
(400), Nazlat a-Sharqiya (1,500),Nazlat al-Gharbiya (800), Zeita (2,800), 'Attil(9,400), Deir
al-Ghusun (8,500), al-Jarushiya(800), al-Maskoofi (200), Shufa (1,l OO),a-Ras(500), Kafr
Sur (1,l OO),and Kafr Jammal(2,300), a total of 37,600residents.
In Qalqiliya District, the communitiesare Falamya (600), Jayyus (2,800),Nabi Elyas (1,000),
'Isla (600), al-Mudawwar(200), 'Izbat al-Ashqar(400), Beit Amin (12,000), Sanniriya
(2,600), 'IzbatSalman (600), and Mas-lia(1,800), a total of 11,600residents.
In Jerusalem District, atthis stage, we are ableto identi@two communitiestliat clearly fa11
witliin tliis category: Rafat(1,800), and Kafr 'Aqeb (15,000)(seethe discussion below),a
total of 16,800residents.
17This categorydoesnot include communitiesinthepreviouslymentionedenclaves, although someof
theinhave residentswhowill be separatedfi-omtheir farmlandthatremains eastofthe enclave.Israeli settlements
Ten settlements,containing a total of 19,000residents,will be located on the western side of
the barrier. Tliesesettlements are, fromnorth to south,Shaqed (500), Hinnaiiit(600), Reliai
(lOO),Sal'it(400), Zufin (900), Alfe Menashe (5,000),Oranit (5,200), Sha'are Tiqwa (3,500),
Ez Efrayim (600), and Elqana (3,000).'~
In East Jerusalem,a total of tliirteensettlementsin which 173,000peoplereside will be
included withinthe Jerusalem envelope:Neve Yaakov (20,300), Pisgat Ze'ev (36,500),
FrenchHill (8,200),Ramat Eshkol(5,800), Ma'alotDafna (3,600), Sanhedria Murchevet
(5,000), RamotAlon (38,000), ShuafatRidge (11,300),the Jewish Quarter in the Old City
(2,300), EastTalpiot (12,800), Givat Hamatos (800), Har Homa (figuresnot available), and
Gilo (27,600).19
18
Central Bureau ofStatistics,Lisof Settlements,their Populations, and Markings- 12 December
2001.
l9 ~he figuresrelate to the enof 2000. Jerusalem Statistical Yearbook 2002, Table Cl13.Infringementof humanrights
Erection of tlie barrier within the West Bank is liableto infringe a range of human rights of
hundreds of thousands of Palestinians,from the rightto propertyto the right to receive
medical treatment.
Most of the infringements are derived from the anticipated impact onthe residents' rightto
freedoin of movement. Therefore,the severityof the infringementsdepends on the crossing
arrangementstliat Israel will employ between the two sides of the barrier. An infringement
that isnot derived from the restrictions on freedom of movement has alreadyoccurred, or is
liable to occur soon: the violation ofthe property rights of the owners of land alongwhich the
barrier is torun.
Infringement of the right to freedom of movement
Everyone has the right tofreedom of movernentand residencewithinthe borders of each
State.
Universal Declaration ofHuman Rights, Art. 13(1)
Everyone lawJUlywithin the territory ofa State shall, within that territory, have theright to
liberty of movement andfieedom to choose his residence.
International Covenant on Civil and Political Rights, Art. 12(1)
The strip of land betweenthe barrier and the Green Line, and apparently betweeiithe barrier
and the municipal boundaries ofJerusalem as well, will be declared a ClosedMilitary Area.
Accordiiigto the state's respoiiseto tlie High Court of Justice, tliis declaration will not apply
to the localre~idents.~'Based onthis statement,residentsof the enclavesWestof tlie barrier
will not be required to obtain a special permit to cross the barrier. However, Civil
Administration officiaishave announced on several occasionsthat permanent crossing
perinits will be issued to residents ofthe enclaves. Other residents ofthe West Bank will
generally not be allowed to enterthese enclavesfor any purpose, unless they obtain a special
permit.
The state indicatedthat Palestinians who live east of the barrier and own landto tlie west of it
will pass through "fariners gates" uponshowingthe "special permits" that will be issued to.
t~iem.~T ~he state promised that, "reasonable crossingarrangements will be made,taking into
accountthe need to enable laborersand suitable equipment to cross, and to enable the produce
grown on the farmlandto cross to land east of the ba~-rier."~H ~owever, exceptfor this general
cornmitment,the state has not providedotlier details regarding arrangements .
20
Response ofthe state in al-Hadisec. 22.
22 Ibid.
Ibid, sec. 35.The state liasiiotyet discussedthe arrangementsthat will apply to tlie moveineiitof residents
of the enclaveseast of the main barrier or of WestBank residents who want to visit tliese
enclaves.It is,therefore, unclear ifthey will needspecial movement permits. It is clearthat
inovement fromthe enclaves to other areas of the West Bank, and back agaiii,will be allowed
only through the specially established crossing points and checkpoints.
The state indicatedto the High Courtthat, in erecting Stage 1of the barrier, not includingthe
Jerusalein envelope, itwill erect five main crossingsand twenty-six agricultural crossings.
Stage 1is scheduledfor completion by July 2003.According tothe head of the SeamArea
Administration,Nezach Mashiach, the 2003 budgetdoes not allocatesufficient funds to erect
the five main cr~ssin~s.~~
Wliateverthe crossingarrangementswill be, it is clear that hundreds of thousands of
Palestinians willbe dependenton Israel' securitysystemwhen they want to crossthe barrier
froin either side.This dependencewill increasethe existingdifficultiesPalestiniansface in
goiiigfrom one place to another inthe West Bank.
Siilcethe beginningof tlie al-Aqsa intifada, IDFrestrictions havebrought Palestinian
inovementto almosta completehalt. In someplaces,the army has set up checkpoints,
concrete blocks,dirt piles, and trencliesthat blockmost of the roads inthe West Bank, and
Palestinians arenot allowed to drive on many roads. In addition,the ariny imposescurfew on
Iiundredsof thousands of residents. These restrictions,which affect al1aspects of life of tlie
Palestinian population, leadto numerous humanrights violations, includingthe rightto earn a
living, tlieright to an education, and the rightto obtain medical treatment.24
Past experience indicates tliatthe restriction on movement of Palestinians is an iiitegralpart of
Israeli policy inthe Occupied Territories. These restrictions are not only imposed for security
reasons. Tlieyare also used to accomplish objectivesthat are forbidden by international law
and are based on extraneous considerations. For instance,Israel has often iinposedcollective
restrictions on movement to punish the population ina particular locationfor an attackagainst
Israelicivilians or soldiers that is attributed to a resident or residents ofthat community. Israel
also routinely restrictsthe inovement of Palestinians,in part because it is the easiest and
cheapest means available at times such as Israeli holidays and electionday.25This experience
23 Akiva Eldar, "The Great Failure of the Separation Fence," Ha'aretz, 31 October 2002.
24 On this subject, see B'Tselem reports No Way Out - Medical Implications of Israel's Siege Policy
(June 200 1);Civilians Under Siege -Restrictions on Freedom of Movement as CollectivePunishment
(January 200 1).For other examples, see B'TselemYsWebsite Newsletter (~rww.btselem.or~).
25 Ibid. See, also, B'Tselem reports Builders of Zion: HurnanRights Violations of Palestiniansfrom
the Occupied Territories Workingin Israel and the Settlements (September 1999); Divide and Rule -
Prohibition on Passage between the GazaStrip and the West Bank (May 1998); WithoutLimits:
Human Rights Violations under Closure (April 1996).raises the fearthat tlie crossingpoints alongthe barrierwill be closed for prolonged periods
and the passage of Palestinians may be completely prohibited.
Establishingclieckpointsalong the barrier is liable to raise problems. Currently,crossing
clieckpoints depends on the goodwill of the soldiers, who do not operate accordingto clear
rules known to the Palestinians. Soldiershave forcedPalestiniansto wait many lioursbefore
allowing tliem to cross, confiscated identity cards, car keys, and even vehicles.In many cases,
soldiers degrade the Palestinians and have, at times, beaten them.
Some, and maybe all, of the Palestinianresidents of these areas will need to obtain a "special
permit" from the Israeli authorities to enable them to cross the barrier. In the past,Israel lias
taken advantage of the requirementthatPalestiniansobtain permits, and conditioned granting
of entrypermits or permits to go abroad on collaboration with the General SecurityService.
The process for obtaining permits entailsrepeated harassmentof the residents and is based on
arbitrary criteria.Palestinians haveoften been refused permits without being given a reason
for the denial. More than once,Palestinians received a permit after intervention byhuinan
rights organizations or other entities, indicatingthe arbitrary manner in wliichIsrael denies
the requests.26
It is clear,therefore, tliatthe state'spromise to build crossing points and "agricultural gates"
alongthe barrier is insufficientto prevent harm to the Palestinians. Israel's policy on tlie
movementof Palestinians inakes itvery uncertain whether Palestinians will indeed be
allowed to crossthe barrier.
The barrier will create a situation forthe residentsof the enclaves rather similar to tlîat of
residents of al-Mawasi, Gaza tri^.A^l'Mawasi is aPalestinianenclave containing 5,000
residents situated Westof the Gush Qatif settlements. Sincethe beginning of the al-Aqsa
intifada, the IDF has placed severerestriction on the residents,akingtheir lives unbearable.
Most of the movement to and fromother areas of the Gaza Strip is throughthe Tufakh
clieckpoint, near Khan Yunis. Generally, entry into al-Mawasiis forbiddento non-residents of
the coinmunity, unlessthey have aspecialIDF permit. The checkpoint is open only eight
hours a day, and only individualswhoreceived a number and magnetic card fromthe army
may pass through. Males uiiderfortyyears old are absolutely forbidden to enterthe area.
Individuals wantingto cross have to wait in long lines and undergo strictchecks bythe
soldiers.At times, the clieckpointis closed for prolonged periods without warning. In such
26
SeeB'Tselemreports Bureaucratic Harassment; Abuse and Maltreatment During Operational
Activities in the WestBank in the First Year of the Declaration of Prin(September 1994);
Collaborators in the Occupied Territories during the Intg-Human Rights Abuses and Violations
(January 1994).
27SeeB'Tselein Al-Mawasi, GazaStrip: InzpossibleLife in an Isolated Encla(March 2003).cases, residents who left homes in the inorniiigare unableto return home and must stay in
Khan Yunis and rely of the kindiiess of othersuntil thecheckpointis reopeiied.
Infringement of the right to work and to an adequatestandard of living
The States Parties to thepresent Covenantrecognize theright to work, whichincludesthe
right of everyoneto the opportunity togain his Iivingby work which hefieely chooses or
accepts, and will take appropriate steps to safeguardthisright.
International Covenanton Economic, Socialand Cultural Rights, Article 6 (1)
TheStates Parties to thepresent Covenantrecognizetheright of everyone to an adequate
standard of livingfor himselfand hisfamily, includingadequatefood, clothing and housing,
and to the continuous improvement of Iivingconditions.
InternationalCovenant on Economic, Socialand Cultural Rights, Article 11(1)
Tlie planned barrier is expected to separatetens of thousands of Palestinians fromtheir
workplace. Even if the barrier does not createtotal isolation,itwill clearlyreducethe ability
of many residentsto work and earn sufficientincometo ensure a minimum standard of living.
The farmlandof residents ofthe enclaves createdwest of the barrier will reinaiii forthe most
part also west of the barrier. Althoughthe barrier is not expected to harm their accessto tliese
lands, the abilityof these farmers to markettheir produceelsewhere in the West Bank will be
affected. Even assuming that the agriculturalcrossingswill be operational,the crossing
process will likely increase transportation costs and reduce profits(seethe discussion on
'Azzun 'Atina below). Farm production will likelybe harmed due to the irregular supplyof
inputs aiidmaterials (such as,seeds, fertilizer,machines,and spare parts), because
Palestiniaiisfrom other areas of the West Bankwill generallynot be allowed to entertliese
enclaves.
Thousands of Palestinians livingeast ofthe barrierwill be separated from tlieir land on the
western side.For example, residents of Qafin, which lies north of Tulkarm, will be separated
froin 6,000 dunam of land [1,500acres],which constitute sixtypercent of their farmland. The
land containstliousandsof productive olive trees. Residentsof a-Ras and Kafr Sur, south of
Tulkarm, will be separated from seventy-fivepercentand fifty percent of their farmland
respectively, on which olivetrees and field cropsare planted.
Farining is a major source of income inthe communitiesthat will be affected by the barrier.
The areas involved are amongthe most productive inthe West Bank and have a bouiitiful
supply of fresh water. Ham to the farming sector inthis area will have grave consequeiiceon
the local population. The Palestinian CentralBureauof Statistics does not publislidata on
individual coinmuiiities,so it is difficultto quanti@the importance of fariningon the
livelihoods ofthe residents of tliesecommunities.However,an indication of its importancecaiibe attained by comparingthe data relating to thethree districts in which tlîese
coininunities lie- Jeniii, Tulkarin,and Qalqiliya - with the rest of the West Bank.
The percentage of land used for agriculture inthese districtsis the highest in the West Bank:
fifty-nine percent in Tulkarm, fifty percent inJenin, and forty-six percent in Qalqiliya,
compared to an average of 24.5% inthe West Bank. The amount of farmland under
cultivation in the three districts is 950 square meters per person, coinparedwith 625 square
meters per person inthe whole of the West Bank.Regarding productivity,the farmland in the
three districtsaverages $442 a dunam a year, compared with $350 per dunamin the West
~ank.~'
Regarding employment, an average of twenty-five percent of the workforce inthese three
districtswas employed in farming in 2001, comparedwith twelve percent in the West Bank as
a whole. Although the threedistricts comprise twenty-five percent of the population of the
West Bank, they supplyforty-three percent ofjobs in the agricultural ~ector.~~ 1fthe Gaza
Strip isiiicluded,the threedistricts comprise fifieen percent of the population ofthe Occupied
Territories, but contributed twenty-eight percent ofthe value ofthe agricultural production in
the Occupied Territories duringthe period 2000-2001 .30
The restrictions on movement are also expectedto harm people who work in sectors otlîer
than farming, whose workplace lies outsidetheircommunity.The barrier will turn Tulkarm
aiidQalqiliya into enclavesthat are detached from nearbyvillagesthat relied on tliese centers
for services on a daily basis. Most of those affected will be residents who work for the
PalestinianAuthority in the district offices and live in outlying villages, or, conversely, live in
Tulkarm or Qalqiliya and work in one of the villages. Even if the Palestinian Authority takes
tlieir situation into account and continuesto pay their salaries,as it has doiie iiisuch cases
since the beginning of the al-Aqsa iiitifada,their right to work, as distinct from their right to
an adequate standard of living,is liable to be severely impaired.
This problem is especially grave invillages near theJerusalemenvelope(if a contiguous
barrier is indeedconstructed) because, unlike inthe north, most of the residents arenot
engaged in farming and are dependent,directly or indirectly, on work in East Jerusalem.
The harm to the ability of tens of thousands of Palestiniansto work andeani a living is
especially grave in light ofthe increasedeconomichardship suffered by Palestinians silicethe
beginning of the al-Aqsa intifada.In the first half of 2002, real unemploymeiit(wliicli
iiicludes individualswho have givenup looking forwork) inthe West Bank reacliedfi@
28
Thesefigures relate to 2000 andaretaken fiom thePalestinian CentraBl ureauof StatisticsLand
29eStatistics in the Palestinian Territor(www.pcbs.org).
30PCBS, Labor Force Survey Annual Reportfor 2001.
PCBS, Agr-iculturalStatistics, 2000/2001.percentof the workforce. In recent years, unemploymeiitin the three northern districts (Jenin,
Tulkarin, Qalqiliya)liasbeen significantly higlierthan the average in tlie eiitire WestBank.
The perceiitageof people living in poverty (defined as per capita consumption of lessthaii
two dollarsa day) - reached fi@-five percent .3Reduction of sources of employment and
iiicomefollowing erection of the barrier is liableto force additionalthousandsof Palestinian
families into poverty.
Other detrimental effects on living conditions
TheStates Parties to thepresent Covenantrecognizetheright of everyone to the enjoymentof
the highest uttainablestandardofphysical and mentalhealth.
International Covenant on Economic, Socialand Cultural Rights, Article 12(1)
TheStates Parties to thepresent Covenantrecognizetheright of everyoneto education. They
agree that educationshall be directed to thejûll developmentof the humanpersonality and
thesense of itsdigni@ andshall strengthen the respectfor humanrights and&ndamental
>eedoms.
InternationalCovenant on Economic, Socialand Cultural Rights, Article 13(1)
Tlie separation barrier is liableto harm, to one degree or another,the livingconditions of
residents in nearby communities.The residents most likelyto be affectedare those living in
enclaves Westof tlie barrier. However, many residents of villages on the eastern side wlio
depeiid on servicesfrom one ofthe three main cities(Tulkarm,Qalqiliya, and East
Jerusalem), which will be isolated from the rest of the WestBank, will also be affected.
Particularly problematic isthe anticipated decline inthe level of health services providedto
the residents. Nine of the villagesthat will become enclaveswest of the barrier do not have a
inedical clinic (Umin a-Rihan, Khirbat 'Abdallah al-Yunis,Khirbat a-Sheikh Sa'ad,Khirbat
Dhaher al-Malah,Nazlat Abu Nar, Khirbet Jubara, Ras a-Tira, Khirbet a-Dab'a, and Arab a-
Ramadeen al-Janubi). Othercommunities provide basic and preventive medical care, but rely
on the medicalservicesavailable in hospitals inthe three citie~.~*
Tliebarrier will also have a detrimental effecton education.Many teacherswho live in
Tulkarm and Qalqiliyateach in schools inneighboring villages and are liableto face
problems in reachingtheir schools. Sincethe secondyear of the al-Aqsa intifada,the
Palestinian Ministryof Education has assignedteachers towork in schoolsaccording to their
place of residence, andthe ministry may do the same afterthe barrier is erected. In addition,
the restrictions on inoveinentaffectthe students at the colleges and universities inEast
Jerusalein, Qalqiliya, and Tulkarm,wliich servethe entire region.
31 UNSCO, The Impact ofClosure and Other Mobility Restriction on Palestinian Productive
Activities,1January - 30 June 2002.
32 The informationis based on the "Map of Health Services" of the Palestinian Ministryof Health
(www.healthinfomm.org).The difficulties in moving from one place to anotherthat will result fromthe barrier are also
expectedto impair the social and family lifeof hundreds of thousands of residents. In an
attempttojustify the creation of one of the enclaveswest of the barrier, the state argued
beforethe HigliCourt of Justicethat it is prevented from settingthe route alongthe Green
Line betweenNazlat 'Issa, which lies inthe West Bank, and Baqa al-Gharbiya, wliich is
situated withinthe Green Line, because it would "break the social fabric" between the two
coininunities." Without going into the specific details of the case beforethe court, the state's
declaration indicatesthat it is well aware of the harm that the barrier will causeto the
relations between the residentsliving on opposite sides of the barrier.
Infringement of the right to property
Everyone has theright to ownproperty alone as well as in associationwith others.
Universal Declaration of HumanRights, Article 17
Privateproperty cannot be confiscated.
Regulations Attached to the Hague Convention Respectingthe
Laws and Customs of War on Land of 1907,Article 46, Paragraph 2
To erectthe barrier, Israel took control of extensive areas along the planned route. Insofar as
the averagewidtli of the barrier is sixty meters, the IDFtook control of 11,400 dunamto erect
the first 190kilometers of the barrier. Most of this land is under private Palestinian ownership
and contains orchards,fieldcrops, and greenhouses.
Tlie legal tool chosen in orderto take control of the land isthrough "requisition for military
needs" orders.Most of these ordersare in effectuntilthe end of 2005, butthey may legally be
extended ii~definitel~.~~esidents who claimownershipof seized land can deinand
compensation from the IDF forthe use of their property. Most of the landownerswhose land
has been taken have refused to accept any compensation, at the recommendationof tlie
Palestinian Authority, so as notto legitimizeIsrael's actions in any way.
After receiving the seizure order, the residents may appealto the legal advisor for Judea and
Samaria.If the appeal is rejected, the landownermay petition the HighCourt of Justice. To
.
date, Palestinians have filed dozens of such appeals and petitions to the High Court of Justice.
Al1of them have been rejected.
By law, tlie seizureorders do not transfer ownership of the landto Israel. However,the
indefinite duration of the requisition, and the vast amount of resources being invested by
33 Response of the state inal-Hadi s,c.31.
34
Regarding land within thejurisdiction of Jerusalem,the control is obtainedby the Emergency
Requisition of Land Law, 5710 - 1949.Althoughthere are several differences between theprocedures
within the area ofJerusalem andthe procedures applyingto the rest of the West Bank,the differences
are not meaningful.Israel in erectiiigthe barrier, leadsto the conclusiontliatthe action is a disguised
expropriation of property. In the past, Israel has used "requisition for military needs" orders
as a means to take control of Palestinian landto establish settlements.These landswere never
returned to their owners. It is now clearthat Israeldid not intend to seize tlie land for a
teinporary period, but to expropriate it permanently.35
In additionto the absolute violation ofthe propertyrights of the landowners aloiigwhose
propertythe barrier will be erected, the propertyrights of owners of tens of tliousands of
dunam located Westof the barrier will be harmedto somedegree, depending on the severity
of the restrictions on their movement. Becauseof the difficulty in reachingtheir land, owners
may cease or reduce cultivation of the land.In such instances,the infringement of tlieirright
to property would become absolute for the followingreason: since the beginning of the 1980s,
Israel liasdeclared land inthe West Bank"state land" if it is not registered in the lands
registry and is not cultivated forthree consecutiveyears; in such an instance, Israel can take
the land from its ~wner.~~ The factthat rnostofthe landlyingWestof the barrier is not
registered increasesthe concern that Israel willtake control of the land at soine time inthe
future.
The infringementof tlie right to propertycommittedby Israel is not restricted to deilyingtlie
owners possession of the land. After taking control, thecontractors level the land by
uprootingthe crops, iiicludingfield crops, greenhouses,and, primarily, olivetrees. The State
Attorney's Office informed the High Courtthat, "Regardingtrees, the contractor[doingthe
infrastructurework] is directed to move objectsfrom one place to anotherwherefeasible(this
is routinelydone with olive trees). This requirespreparationwork, such as pruningthe tree
before movingit. The tree isthen inoved to a locationthat is agreed-upon- to the extent
possible- with the land~wner."~~ In reality, liowever,the matter is often handled very
differently.
B'Tselemtook testilnonies from several Palestinianresidents of Qaffin and Far'un wliose
land containingolive groves was taken to erectthe bar~-ier.~ A'ccording to the testirnonies, the
contractorshave not contactedthe residents andthe soldiersguarding the work site have not
allowed the residentsaccessto take away the treesthat were cut down. In some cases,
Palestinians went ont0 their land after the soldiersand laborersleft and foundthat their cut-
down olivetrees had been stolen.
35For extensive discussion on this subject, see B'Tselem: Land Grab: Israel's SettlenzPolicy in the
WestBank, May 2002.
36 See Land Grab, pp. 5 1-58.
37 Response of the stateinal-Hadi, sec. 27.
38 The testirnonies were given to Najib Abu Rokaya during February 2003.The tlieft of olivetrees by the coiitractorsdoingthe infrastructurework was also documented
by ~ediot~haronot." In researcliingtlie article,the journalists contacted one of the
contractors and said they were interested in buyingtrees that had been cut down.The
company's CE0 offeredthe journalists "as many trees as they wanted" at "around NIS 1,000
a tree."
Thejoumalists met with the work supervisorand agreed on purchase of the trees. The article
also indicatedthat the relevant Civil Administration official is aware of, and cooperatesin,
the saleof the trees.The officia1provided thejoumalists withthe permit needed to bring the
trees into Israel.
In response to B7Tselem'squery on the Ministryof Defense's policyon the theft of olive
trees, tlie ministry's spokespersonreplied on 2 January 2003, that the "Ministry of Defense is
iilvestigatingthe matter, butthe investigation has not yet been completed."
Case study: 'Azzun 'Atma
'Azzuil 'Atma is a Palestinian village situated ten kilometers southeast of~al~ili~a.~'The
village has 1,500residents. Adjacentto the villageto the east liesthe settleinent Sha'are-
Tiqwa, whicli stretchesfor a distance of 2.5 kilometers and seversthe territorial contiguiy
between 'Azzun 'Atmaand two neighboringvillages, Beit Amin and Sanniriya. Witlithe
decision to place Slia'areTiqwa west of the barrier, 'Azzun 'Atmawill be surrounded by tlie
barrier on al1sides and become an enclave. Furthermore, some ofthe houses in the village, in
whicli seventy people reside, are situated south of RoadNo. 505 (theold Trans-Israel road).
Because the defense establishmentdoes not want to impair the main trafic arteryto Israel
used by settlers in Sha'areTiqwa,the barrierwill pass nortliof theroad, thereby severing
tliose residents from the other residents of the village.
Some of the residents of 'Azzun'Atrnapreviously worked in Israel, but followingthe
outbreak of the current intifada,most of the residents make a livingfrom farming. 'Azzun
'Atma is known as one of the largestvegetable producers inthe West Bank. Tentrucks of
produce leave the villagedaily for market, oneto Israel and nine to markets in the West Bank.
West of the village lie more than 4,000 dunamof farmland ownedby residents of 'Azzun
'Atma, Beit Amin and Sanniriya.A few hundred dunarnof this land(south of Road No. 505)
will remain Westof tlie barrier.Villagers from 'Azzun 'Atmaown about 1,000 dunain of land
east ofthe villagethat will be locatedeast of tlie barrier.Most of these lands coiitaiii
greenhouses in which the residents growvegetables(includingtomatoes,cucuinbers,
-
39
DaniAbbaba,MeronRappoport,andOronMeiri,"OliveBooty," YediotAharonot,SevenDays
40eekendSupplement]2 , 2November2002.
Theinformation inthissectionwasgatheredduring avisitto the villaandnearbyvillageson 3
February 2003.cabbage, cauliflower, eggplant, and beans).The separationbarrier is liableto severely hamper
the ability of the residents of tliese three villagesto work their land and market their produce
iiithe West Bank.
The village's twosclioolswill also likely be harmedas a result of the barrier. In the
elementary scliool,which has 325 pupils, onlytwo of the eighteenteachersareresidents of
the village. Theotlierteachersreside in nearbyvillages and in Qalqiliya. In the other school,
wliich is a middle and high school, there are 250pupils, half of whom are from Beit Amin.
These pupils will have to cross the barrierdailyto reach school. Of the sixteen teachers in the
school, onlythree live inthe village. Theothers live invillages in the ~ea.~'
'Azzun 'Atmahas a inedicalclinic operatedby the PalestinianAuthority that provides basic
inedical treat~nent.~T~he clinic's staff is comprisedof a nursewho comes from Qalqiliya
threetiinesa week, and a physician who comes fromHabla once a week. The clinicalso
serves residents of Beit Amin, 'Izbat Salman,al Mudawwar, and 'Izbat Jalud,villages in
which no medicaltreatment is available and whichwill remainon the other side of the barrier.
For inedical services otlierthan the few providedbythe clinic, residents of 'Azzun 'Atina rely
on the liospitalin Qalqiliya. Sincethe outbreakof the intifada,access to Qalqiliya Ilasbeen
problematic, soresidentsalsouse hospitals iiiNablus.
Once the barrier iserected,Qalqiliyawill become an enclave,which will make rnovemeiit
between 'Azzun'Atrnaand Qalqiliya particularlydifficult.Palestinianswantingto travel
froin 'Azzun'Atinato Qalqiliya and vice versa will haveto crossthe barrier fourtimes, twice
in eaclidirection.
Case study: Kafr 'Aqeb
Kafr 'Aqeb is a Palestinian community locatednorth of theAtarot airport, which lies inNorth
~erusalem.~T ~he municipal border of Jerusalemthatwas set followingannexation of West
Bank land in 1967crosses between houses inthe community.As a result, part ofKafr 'Aqeb
lies withinJerusalem's area ofjurisdiction. We shall discussthe effects of the barrier on the
41 For more information on this school, see the fiame on demolition of houses.
42 The Palestinian Authority's Ministry of Health classifies this clinLevel 2, meaning it provides
mother and child care, immunizations, and general medical treatment, and takes blood for testing
(www.healthinform.org).
43 Some of the information on Kafr 'Aqeb presented in this section was gathered during a visit by
B'Tselem to the village on 24 January 24, 2003. Details were also provideby a member of the village
committee, Samih Abu Ramila. Jerusalem part of the community. According to the Jerusalem Statistical Yearbook,Kafr
'Aqeb Iiad 10,500residents at the end of 2000.~~
Tlie residents of Kafr 'Aqeb, like otherresidents of East Jerusalem, lioldtlie status of
permanentresident in Israel and carryIsraeli identity cards.They pay property taxesto the
Jerusalem Municipality and other taxes (such as incometax, V.A.T., andhealth insurance),
but receive almost no services from the public authorities.Thevillage has no welfare
services, no health-fund clinic and mail is not deliveredto the homes. Only tliemain Street'
has lights. The houses are not connectedto the municipalwater system, but rather are
connected to the Ramallah water system,which is unableto supplywater on a daily basis.
In August 2002, the Cabinet approved Stage 1of the barrier, which also includedthe northern
section of the Jerusalem envelope.Theroute passes southof Kafr 'Aqeb, several meters froin
the last liouses inthe village, and stretchesfromthe Ofer army base, west of the village, to tlie
Qalandiyacheckpoint on the east, for a distanceof 3.8kilometers. Unlike tlie barrier in the
northern section of the WestBank,the barrier in this area will range from twenty-five to sixty
meters across. According tothe StateAttorney's Office's statementto the High Court of
Justice, Israel plans to erect a depth barrier between Kafr 'Aqeband Ramallah, but B'Tselem
does not have information on tlieprecise route.45Tliemain barrier, alongthe route decided by
the Cabinet, is liableto cause grave violationsof the human rights of the village's residents.
The most significantviolation stemsfromthe planned severance of tlie area from the otlier
parts of Jerusalem. Because of their statusas permanent residents of Israel,the residentsof
Kafr 'Aqeb are not subjectto the restrictionson movement imposed onresidents of the
Occupied Territories.They canmove about within Israel and cross through checkpoints.
Regardingthis point, the State Attorney's Office stated, "It should be understood thatthe
Jerusalemenvelope is solelya securitybarrier, and it does not alterthe status, rights, andor
'.
obligationsasthey currentlye~ist."~ The State Attorney'sOffice addedthat, "The local
population will be issued special permits to enable them free movement to and from
Jerusalem, subjectto security arrangements." However, despite the state's promises, the
residents' experienceoverthe past twoyears regarding freedom of movement raises major
concernthatthe state's promiseswill not be kept.
44 Jerusalem Statistical Yearbook, 2002, Table Cl13. The village committee estimates the current
population at 15,000.
45 In its response, the StateAttorney's Office stated that, "An additional barrier, referred to as the
depth barrier,is planned in the area from Ofer Camp to Pesagot." See Comm. App.12597,Kafr 'Aqeb
Development Conmittee et al. v. Ministry of Defense et al. (hereafter: Kafr 'AqebDevelopment
46n~~nittee)r,esponse of the state, sec. 331c.
Ibid, sec. 43.The Qalandiyacheckpoint is located south of the village, three kilometers insideJerusalem's
jurisdictional area, and residents haveto cross it every timethey want to enterthe city or
return home.Thevast majorityof its residentswork in otlier areas of Jerusalem and have to
crosstliecheckpointto reach their workplace.Residentsof Kafr 'Aqeb alsogo iiitoJerusalein
to receivemedical treatmentor other services.47Theexistenceof the checkpoiiitdelays, and
sometiinesprevents, the passage of residents ofKafi-'Aqebto and fromJerusalein. Wlienever
the IDF imposesa liermeticclosure, whether because of a specificwarning of a planned
attack againstIsraelis, an IDF invasion into Ramallah,or Knesset elections,tliecheckpoint is
closed, making it impossiblefor residents to reach otherparts of Jerusalem.
Whenthe checkpoint is not closed, it is open fi-om 6:00A.M. to 6:00P.M. Recently, it has
reinained openuntil9:OOP.M.When it closes, residentsof Kafr 'Aqebare cut offfroin
Jerusalem,except in casesof emergency. Shortlybefore the opening and closing of the
checkpoint,long lines of pedestrians form and the wait is an hour or more.Residents in
veliicleshave an even longer wait becausethe checkpoint lies on the main road nortlito
Ramallah,which is used by dozens of trucks daily. Residents ofKafr 'Aqeb complain thatthe
body checks are, at tirnes, excessive and degrading.
After crossingthe Qalandiya checkpoint,the residents of Kafr 'Aqebthen haveto crossthe a-
Rain checkpoint,which is located onthe main road in Beit Hanina. This checkpoint reinains
open evenwhen a coinprehensiveclosureis imposedonthe OccupiedTerritories, but the
residents haveto wait in long lines beforetlieycan cross. Recently, followingtlie construction
of Road No.45 (NorthBegin Road), the residents have an alternativeto crossingthe a-Ram
checkpoint.Alongthis road, too, there is a checkpointthat delays entry intothe city.
Dueto tliedifficulties in crossing the checkpoint,many of the village's residents who worked
in Jerusalem werefired because they did not show up for work or were frequently late. The
few merchantsinthe village have suffered because of the decreased demand resulting from
the poor economiccondition and the irregulardelivery of merclîandise.
Erectionof the barrier south of the village will almostcertainly makethe current situation
permanentor even make the situation worse. Residentsarenow requiredto show an identity
card when they reach the checkpoint, but whenthe barrier is in place,they will haveto
receive a "special permit" to enablethem to cross into Jerusalem.
Residentsof the village wlio decideto move to another location in the Occupied Territories to
live orwork due to the problems resulting from the barrier, risk losingtheir status as
47Village residents, represented byDaniel Zeidman, petitioned the High Courtof Justice to change the
procedures for crossing theQalandiya checkpoint.The petition is pending. HCJl1745Comrnunity
Administrationfor the Developnzent ofBeit Hanina etal. vCommander of CentralCornnîand.permanent residents, including the right to return to live inthe village. This is because of
Israel's policy, which was appliedmost exteiisively in 1996-1999,to revoke the status of
residents of East Jerusalem who ,accordingto Israeli officials, movedtheir "center of life" to
an area outside the
Further Iiarmto the residents of Kafr 'Aqebresults from Israel'staking control of landto
build the barrierand fromthe separation betweenthe residents andtheir fields. In tliis regard,
the situation of Kafr 'Aqeb is similarto that of villages inthe northern West Bank. Given that
the average width ofthe barrier inthe Kafr 'Aqebarea is forty meters, the Ministry of
Defense took control of 150 dunam. Most of the area is privatelyowned by forty-six families
living in the village, and some by residentsof the nearby village Rafat.The barrier will
separate residents from 105parcels of land located southwest ofthe barrier that are owned by
eighty-five families. About half of these lands are cultivated and usedfor growing vegetables.
For some of the families, marketing their produce is their sole source of income.
In addition, according to the opinion ofthe NGO Bimkom,the route chosen will impairthe
urban development of the village, as appearsfrom two outline plans thatthe Jerusalein
Municipality is proinoting for the village.49The principal land reserves ofKafr 'Aqebfor
building lie soutliwestof the village, wliichwill remain on the other side of the barrier. As a
result, the possibility of developmentwill be diminished andthe communitywill not be able
to ineet the residents' future liousing,commercial, and social needs.
The present route may also endangerthe lives ofthe residents livingnear the barrier's route.
The military patrols along the patrol roadare liable to be a target ofattack by armed
Palestinians, who will use residents' homes,with or without consent,to fire atIDF patrols.
Occupants ofthe houses will paythe price ifthe IDFreturns fire, and their homes are likely to
be de~tro~ed.~'
In oneof hearings on the appeal filed by residents of Kafr 'Aqebagainst seinire of their land,
Colonel Dani Tirzah, who is in charge of planningthe route ofthe barrier for the SeainArea
Administration, was asked whetherhe thought construction ofthe barrier so close to liouses
risks the lives ofthe residents, and ifthis consideration had beentaken into account. He
responded:
48 B'TselemandHaMoked:Centerfor theDefenseoftheIndividual, TheSilent Deportation -
Revocation of Residency Status of Palestinians in East Jerusal(April 1997).
49 Bimkom, Opinion on the Plan Regarding the Separation Barrier inKafr 'Aqeb(March 2003).The
non-governmental organizatio Bnimkom - PlannersforHumanRightswasfounded in1999 by
planners,geographers,architects a,ndhumanrights activiststopromote the rightsofdisadvantaged
50pulationsinIsraelandthe Occupied Territoriesintheareaofplanning.
In earlyJanuary,theIDFdemolishedahouseinKafT'Aqebfromwhich,the armycontends,
Palestiniansiredatsoldiersatthe Qalandiya checkpoint. The situation is similarto what occurred at KibbutzMetzer. Terror strikes
everywhere,regardless of whetlierit exists in a Palestinianviciiiity.. .If a
terrorist firesfrom your office, don't expectthat they woii'tfire back at him..
The consideration of riskto human life istaken inthe contextof the
discussions taking place now regarding the patrolsthat will operate alongthe
fence;tliat iswhere these considerationsshouldbe taken into account, rather
than the consideration aboutthe route."
Ailotlierriskto the lives of Palestinians livingnear the barrier's routestems fromthe
proxiinity of the IDF patrolsto housesinthe village. The open-fire regulationsallow letlial
fire also in cases in which soldiers' livesare not injeopardy. Sincethe beginning of the al-
Aqsa intifada,liundredsof innocentPalestinians have been killed or wounded by IDF
guiifire.52The movement of civilians near IDF patrols alongthe barrier, primarily at iliglit,is
liableto leadto additional injuriesto innocentpeople. The degree of this dangerlargely
depends onthe open-fire directives givento the soldiers.
51
Minutes of the session of the Tel-Aviv Magistrate'sCourt, 20 November 2002, Kafi. 'Aqeb
52veloprnent Cornmittee.
See B'Tselem, Trigger Happy: UnjustijiedShooting and the Open-Fire Regulations during the al-
Aqsa Intifada, (May 2002).Dernolitionof houses in the enclaves
With the start of construction ofthe barrier, the CivilAdministration beganto issue
demolitionorders and demolish homes in Palestinian communities near the barrier's route.
The official pretext forthis policy is the lack of a building permit. The Civil Administration
lias issued about 280 demolition ordersin these communities.
Most of the ordersrelate to buildings in enclaves west of the barrier's route. In Nazlat 'Issa
(2,300 residents), 170demolitionorders(elevenresidentialdwellings and the remainder
commercialbuildings)were issued. On 2 1January 2003, the Civil Administration demolished
sixty structures inthe market near the Arab-IsraelivillageBaqa a-Gharbiya. In Bart'a a-
Sharqiya (3,200 residents), inJenin District,the Civil Administration issued seventy-two
deinolitionorders in recent months(twelve residentialdwellings, fi@-six shops,three sewing
workshops, and one other workshop).In December 2002, residents in Azzun 'Atma (1,500
residents) received twenty demolitionorders, eighteenof them residential dwellings and two
structuresthat served as bathroomsforthe village's high school. In Umma-Rihan and Dhaher
al-Malali, Jenin District (total of 600 residents), nine demolition orders were issued (eight
residentialdwellingsand a school).
Orderswere also received in communitiesthat are scheduled to become enclaves east of the
barrier. In 'Izbat Jalud, QalqiliyaDistrict(100residents), demolition orderswere issuedfor
tliree structures(two residential dwelliiigsand one mosque). Ilia-Taybeh, Jenin District
(2,l OO),orders were issuedto demolishthreeresidentialdwellings. One of these dwellings
was recently demolished.
The ostensibly illegal buildingthroughoutthe West Bank results from Israel's age-old policy
of refusing to issue Palestiniansbuilding perrnits outside the built-up area ofthe towns and
villages.The refusal is basedon the outdated outline plans fromthe time of the British
Mandate, which classifiedmost of theterritory of the West Bank as agricultural areas. The
policy has remained in effectas regards Area C (whicliconstitutes about sixty percent of the
West Bank)even afterthe OsloAccords.To meet the population-growth needs and to earn a
living ,the residents in certain areashave no choice butto build without a permit.53The
current wave of demolition ordersconstitutes another form of pressure and hardship that the
Israeli autliorities currentlyimpose,and will continue to impose on Palestinians living near
the barrier's route.
53
SeeB'Tselem, DemolishingPeuce:Israel'sPolicy ofMass Delnolitionof PalestinianHouses in the
WestBank (September 1997).
26Infringement of human rights - violation of international law
At the beginningof the al-Aqsa intifada, Israeldefinedthe situation inthe Occupied
Territories as"ail armed coiiflictshort of war," and that the relevant provisionsof
iiiterilationallawarethus the laws of ~arfare.'~The SupremeCourt recently saiictionedthis
position.55Israel usesthis position tojustify the violationsof Iiumanrights of Palestinians
resultiilgfrombuilding the separationbarrier,as ithas since the outbreakof the current
intifada.
Maiiy organizationsandjurists inIsrael and abroad, including BYTselem,do not accept
Israel's categorizatioiiofthe present situation.Even after transferof part of the West Bank
and Gaza Stripto the Palestinian Authority,Israel remainsthe occupier in these areas.The
combat actionsnow taking place inthe Occupied Territoriesdo notjustify the sweeping
definition of events there aswar, and do not allow Israelto ignore its dutiesas the occupier.
These duties require Israelto protect the civilian populationand ensure their safetyand
welfare. TheInternational Committeeof the Red Cross,which is charged with
iinplementation ofthe Geneva Conventions, Iieldthat, "even in the present violence,"Israel
reinains the occupying power inthe Occupied Territories and thereforemust complywith the
provisions ofthe Fourth GeiievaConvention and otherrules relatingto occupation.5G
The applicationofthe laws of occupationdo not nullifyinternationalhuman riglits law, which
reinain bindingon Israel iii its actions inthe Occupied Territories.TheUN coininittees in
charge of impleinentingthis lawhave categorically statedthat Israel mustcomply with the
provisions ofthe human rights conventionsin al1the territories under its control, includingthe
West Bank andthe Gaza Strip, and that this obligationapplies also in the circumstancestliat
have been createdfollowingthe outbreak of the al-Aqsa intifada.57
International lawdoesnot provide absoluteprotection for al1human rights. There are
circumstances in which infringementof certain humanrights is lawful,whether becausethe
situation is definedas "armed conflict shortof war" oras occupation. However,violations of
huinan rights are lawful oiilywhere certain conditions are met as laid out in international law.
54
Sincethebeginningofthe current intifada, Israhelasmadethis argumenb t eforetheHighCourtof
JusticeandininternationalforumsT .hestaterecentlyclarifieditspositionatlengthinitsresponseto
the "assassinationspolicy. SeePublic CommitteeAgainst Torture in Israel et al. v. Government of
Israel et alSupplementalResponso eftheStateAttorney's Office, section 7-58.
55 HCCJ/70 15,70 19/02,Ajuri v. Commanderof IDF Forces inthe WestBank et al.
56 Committee of ContvactingStates of the Fourth GenevaConvention - Statement of the International
Comnzitteeof the Red Cross,Geneva,5December 2001 s,ec. 2.
57Concluding Observation osf theCommittee on EconomiS c,ocialandCultural RightsI:srael31
August2001,ElCl12/1.Add69;ConclusionsandRecommendationo sftheCommitteeagainst Torture,
Israel,23.11.OICAT,/C/XXVII/Concl5 .;ConcludingObservations oftheCommitteeonthe Rightsof
the Child: Israel,10.02CRC,/C/.Addl95.Tlius,even acceptiilgIsrael's definition ofthe situation prevailing intlie Occupied Territories,
Israel is not entitledto do whatever it wishes and without limitation. Eveiiiii war, as liarshas
war can be, Statesarerequired to act inaccordancewith international law. For sometime,
jurists and internationalcourts have rejectedthe contentionthat militaryneeds prevail over
every other consideration inwartime. Al1actions must be carried out in accordancewith law,
and the parties involved inthe armed conflictare notfree to selectany metliodor means of
warfare that comes to mind.58
The duty to examinealternatives
The infringementof human rights is notjustified if other courses of action are availableto
achieve the same objective without causingsuch infringement.This principle is fmly
enshrined in international humanitarian law, which deals with war and occupation,5gin
international human rights ~aw,~a 'nd indecisions of Israel's Supreme~ourt.~'
In one of its responsesto the High Court of Justice regarding erectionof tlie barrier,the state
mentioned that, "Tliis is a process thatwas taken becausethere was no option and only after
various other measures did not succeed iiicurbing thewave of terr~r."~'However, the state
did not describe inthat response, or its other statementsto the High Court on this matter,
tliose "other measures"and why they failed.
Aii examiiiation conductedby the StateCoinptroller indicatestliatthere areat leasttwo
means tliat are suitable alternativesto the separationbarrier. The state did not investigatethe
efficacy of these options, even tlioughthey would result inless extensive violationsof
Palestinian human rights than that causedby the erection of the barrier.
Efficacy of checkpoints on the Green Line
The decisioiito erect a barrier separatingIsrael fromthe West Bank to prevent attacks within
Israel is based onthe assumption thatthe perpetratorsofthe attacks enter Israel throughtlie
open areas betweenthe checkpoints and notthroughthe checkpoints, which ostensiblycheck
the people who cross into Israel. Accordingto the StateComptroller's report on the seam
area, which was publislied inJuly 2002,that assumption is imprecise.
Tliirty-twocheckpoints exist alongthe Green Line, through whichentry into Israel is
possible. Thirty of these checkpoints are run bythe IDF, and the Israel Police Force is in
58 L.C. Green, TheContemporav Law ofArmed ConJicf (Manchester University Pres2 s, 00)123.
59
See,forexample,Article 57 (3)oftheFirstAdditionalProtocotlo theGenevaConventionso ,f
60977.
Onthe righttohealth, see, forexainple,sec.29ofGeneral Comment No 1.5oftheUN Committee
61nEconomic, Sociala ,ndCultural Rights,2000.
See,forexainple,HCJ6055195 S,agy Tsemachet al.v. Minister ofDefense et al., Piskei Din 53 (5)
241.
62 State'sresponse inAjuri,sec. 58.charge of the otliertwo. Regarding attacks committedin Israel silicethe beginningof the
current Intifada,the State Comptroller found that, "IDF documents indicatethat most of the
suicideterroristsand the car bombs crossedthe seamarea into Israel through the checkpoints,
where they undenvent faulty and even shoddy checks."63
The State Comptrollerysreport pointedout the significantdefects at the checkpoints. The
report statedthat, "The checkpointsdo not have a specific commaiidor a task file from
brigade headquartersthat classifiesthe assignmentsat the checkpoint and coordinates tlie
procedures for its operation," andthatthe "checkpointsdo not have proper equipment and
infrastructureto conduct security checksof vehicles, individuals,and merchandise." In his
conclusions,the StateComptroller discussedan army document on checkpoints, finding tliat,
"The existingcheckpoints in the seamareaare not organizedto properly check vehicles,
freight, and people, and there is an urgentneed to improve inspectionsat checkpoints by
having permanent and skilled personnel check vehicles, usingtechnological means, and
iiistitutioiializiiigthe crossing points."64.
The findingsof the State Comptrollerwere published inJuly 2002, whilethe government's
decision to erecttlie barrier was reached a month earlier. The decision was not clianged
followiiigpublication of tlie State Comptroller's findings,and it appearsthat no meaningful
changes weremade to address even someof the problemsmentioned by the State
Coinptroller.Rather, the state preferred a more extremealternativethat entails numerous
liumanrights violations. In decidingto chooseto erecta barrier, Israel violated itslegal duty
to implementoptional means before adoptinga meansthat will leadto especiallygrave
human rights violations.
Furthermore, erection of the barrier will increasethe number of checkpoints between Israel
and the WestBank. According to a documentthatthe State Attorney's Officesubmitted to the
High Court, fivecheckpoints and twenty-sixagriculturalgates are to be built along the barrier
in Stage 1alone. If the state does not improvethe effectivenessof the checkpoints,a
paradoxical situationwill arise in whichthe barrier willincreasethe danger of attackswithin
Israel. If tliedefenseestablishment plans to rectifythe flaws at the checkpoints as part of the
barrier project,by adding sophisticated inspectionmechanismsand skilled personnel, these
improvementscould be carriedout immediatelyirrespective ofthe barrier project. The lack of
connectionbetweenthe problem and the proposed solutionmay be what Prime Miiiister Ariel
63 State Comptroller's report, p. 35.
64 IDid ..36.Sharon was alludiiigto when he said,"The idea [to build the barrier] is populist and intended
to serve politicalobjectives.'765
Guarding the seam area
The StateComptrolleralso examined IDF deployment alongthe seam area to prevent
Palestinians without permits from enteringIsrael throughthe open areas, as the Cabinet
ordered iiiits decision of July 2001.Changes in the manner of deployment, like improverneiit
of the faultyoperations atthe checkpoints, is an alternativethat would cause a lesser degree
of Iiuinanriglitsviolations than a separationbarrier.
According to the State Comptroller's report,the IDF formulated a "new concept" for action in
the Occupied Territories, which the chief-of-staff approved in January 2002.As a result,the
IDF forewentspecial deployment in the seamarea and disbanded the "task cominand" that
was set up inJuly 2001to coordinate IDFactivity inthe seam area. Responsibilityfor
guarding the seam areawas divided amongtlie brigade commanders in eacli sector. The main
efforts and means encompassed witliinthe new mode1were directedto other objectives:
The IDF'snew concept [for action]in Judea and Samaria iedto shiftirtgthe
responsibility of most ofthe forcesactive inthe seam areato the task of
guarding roads on which Israeli vehicles travel, on-goingsecurityactivity near
Israeli coinmunities inJudea and Samaria;and thwartinghostileterrorist
activity within Judea and Samara,primarily inthe Palestiniancities. The IDF
forces' operationsdid not focus on preventing movement of individuals and
vehicles from Judea and SarnariaintoIsrael in areas other than tlie desigiiated
crossing points. This trend was reflected inthe orders given by the relevant
forces inthe seamarea, and in operationaldirectivesof the brigades operating
inthe area. IDF documentsrevealthat combat deep inside the territory of the
Palestinian Authority is giventop priority, andnot the seam area.. .
Implementation of the IDF'snew concept inthe seam area both directly and
iildirectlyaffected the abilityto implementthe seam area plan. Among these
effectswere the significant reductionin activityto prevent Palestinians from
crossing from Judea and SamariaintoIsrael; reduction in the IDF presence in
unpopulated territories alongthe seam area; and a decline in coordination and
cooperation between IDFforcesand the Israel PoliceForce.. .
At the tiine thatthe audit was conducted, observationposts had not been set
up to cover a great part of theeamarea. The IDF lacked technological ineans
65 Amit Ben-Aroya, "Sharon to Seam Area Police: The Separation Fence is a Populist Idea," Ha'aretz,
12April2002.1) Topography - According to Israel, "The selection of the topographic route ofthe barrier
was derived fromsecurity reasons. The barrier inust pass through,to the greatest extent
possible, areas fromwhich the surroundingterritorycan be controlled, in order to prevent
liarmto forces operating aloiigthe route, andto enable tlieforces to operate observation
points that overlookboth sides of the fence."
2) Securiq area - "The fear isthat the barrier will not prevent every penetratioii,andthat
security forces will not be ableto arrive intime to thwart the crossing of potential
attackers. A geographic securityarea isnecessaryto enablethe combat forcesto chasethe
terrorists withiiiJudea and Samariabefore they are able to cross into Israel and disappear
within the population."
3) Inclusion of as manysettlenzentsaspossible Westof the barrier- "The fear is thaterection
of the barrierwill cliannelthe attacksto these communities, so itwas decided to havethe
fence pass east of these settlements in order to provide protection for them aiidforthe
access roadsthatreach the~n."~'
At first glancethe first two components seem legitimate.However,B'Tselein does not have
tlie tools necessaryto determinethe degreeto whichthey were factored intothe determination
regardingthe barrier'sroute. It is clear that includingsettlementswestof the barrier is not an
imperative military needjusti@iiig graveviolations of human riglits.Tliis consideration and
other illegitimateconsiderations(see below) ledto selectionof a route that severely violates
human rights without any justification based on securityneeds, inviolation of international
law.
Perpetuation of the settlements
Pursuant to internationalhuinanitarian law,the settlementsthat Israel established inthe
Occupied Territoriesare illegal. The Fourth Geneva Conventionprohibits an occupying state
from transferringa population from its territory intothe occupiedterritory, andthe Hague
Regulations forbidinaking permanent changesin the occupied territory.Breaches of these
prohibitions resulted in increasingviolations ofthe humanrights ofthe resideiits in the
Occupied Territories, primarily to protectthe settlers fromPalestinian attack~.~'
Becausethe veryexistence of the settlementsviolates international law, Israel inustdismantle
tliem. Clearly,movingthe settlersto areaswithin Israel will supplythem with comparable - if
not better - protectionthan includingthem west ofthe barrier. This solutionwould also
prevent additionalviolations of the Palestinians' human rights.
68
69 Ibid., sections 18-9.
For discussion on the human rights violations resulting from the location of the settlements, see
B'Tselem, Land GraO. to locate infiltrators; IDF patrols in the seamarea did not reach relevant points
within a short span of time; communicationbetweenthe IDF and the Israel
Police Force were lirnited,which preventedefficientuse of the forces.66
Tliesecommentsindicate many meansthatjointly could provide a proper response to the
entry of Palestiniatis into Israel through the open areas. Tliesemeans includea substantial
presenceof securityforces,patrols, observationpoints, andclose coordination between IDF
and Police forces. However, the IDFdecided not to examinetlieseoptions because of its new
policy, wliicligave low priority to protectingthe seam area. Rather,the IDF preferred to
invest in other efforts, such as attackingpersons suspectedof committingactions against
Israel, attacking the infrastructure of the PalestinianAuthority and protectingsettlers.
The factthat the IDF's new policy creates a shortageof soldiersto guard the seam area does
not release Israel from its duty to implementoptionsthat violate human riglitsto a lesser
degree.If blocking the entry of Palestinians intoIsrael is indeedurgent, asthe state contends,
the urgency should be reflected in allocation of the necessary resources. If, alteriiatively,the
defense establishment does not give this task top priority,the statecannot tojus@ the grave
human rightsviolations it entails.
Determining the route: legitimateconsiderations versus extraneous
considerations
Eveii ifwe accept Israel's contentionthatthe separation barrier is the only way to prevent
Palestinians from entering Israelto commit attacks, Israel hasthe dutyto plan the route of the
barrier such that it harmshuman rights to the least extent possible. An examination of the
considerationsthat Israeli policy-makers took into accountin determiningthe route of Stage 1
of the barrier indicatesthat the human rights componentwas not a decisivefactor.Other
reasoiis, which are entirelyunrelatedto human rights, were ultimatelythe basis for
determiningthe route of the barrier.
Geiieral declarations aboutthe reasons underlyingthe determination of the barrier's route are
insufficient. Israel must providejustifications separatelyfor each section of the route tliat
results in human rightsviolations.
In its response to the High Court, Israel statedthat, "Operational considerations were the main
consideration in selectingthe barrier's route."67These considerationsincludethree principal
components:
66 Ibid., pp21-22.
67 State's response ial-Hadi, sec. 18.Even ifIsrael does not disinantle the settlements,the contentiontliatthe only option to defend
the settlements isto situate them Westof the barrieris baseless.Most ofthe settlements will
remain east ofthe barrier. With the objective of protectingthese settlements,the
Ministry of Defense decided to erect "a new protectionsystemthat includes an
electronic fence to provide warning [ofinfiltration],and a staffedcentral-control
room," 70 and to setup "special security areas" surroundingthe settlements,where
protection would be greater.71These same measures canbe taken for the settlements
that, accordingto the current plan, will lie west ofthe barrier. Such action would
provide a reasonable solutionto the securitythreat they faceand significantly reduce
the infringement ofthe rightsofthe Palestiniansthat will occur if the barrier is
erectedon land withinthe West Bank.
The existence of these two alternatives,which Israel choseto ignore, raises concern
that the real reason for the Cabinet'sdecisiononthe barrier'sroute was not to provide
maximum protection of the settlers.Rather, the underlyingreason was to establish
facts on the ground that would perpetuatethe existeficeof settlementsand facilitate
their future annexation into Israel.
Political-partyconsiderations
The idea to establish a barrier that runs alongthe entire"seam area" was met with substantial
opposition, in particular from right-wingpoliticians and settlementofficials. Their main
argument was that such a barrierwould likely soon becomethe political border between Israel
and the Palestinian state to be established.In addition,it was claimedthat construction of a
barrier ofsuchsize on a routethat followsthe GreenLinewouldbe a political achieveinent
for the Palestinians, as it wouldrecognizethe Green Lineas a relevant starting point for
discussions on the border between Israel andthe West~ank.'~In the words of Israel Harel, a
Haaretz columnist and formerhead of the YESHACouncil:
About two months afterthe IDFrestored asignificantportion of its deterrence
capability inthe battles of OperationDefensive Shield,the Israeli government,
headed by Ariel Sharon, gavethe strategicvictoryto Arafat. Exactly tlîirty-
five years afterthe Six DayWar, and aftertwo years of a brutal and unceasing
70AlexFishmanandYuvalKarni,"FortySettlements tobeSurrounded byElectronicFence," Ynet,9
July2002.
71 AmosHarel, "Security areasinsettlementswillincludeobservation posta snd patrols,Ha'aretz, 26
December 2002.
72 Later,theYESHACouncilsupportederectionofthebarrieralongaroutethatwouldpasseastof the
presentrouteandincludea largernumberofsettlementsWestof it.See NadavShargai, Ha'aretz, 4
February 2003. war of terror, Israel's governmenthas decidedthat it isnot meeting the feeble
pressure of the public - and of past and present seniordefenseestablishment
officiais- to establisha security separationline,that will essentially coincide
withthe cease-fire lines of 1949. 73
In responseto these objections and criticism, governmentministers, and the Minister of
Defense in particular, repeatedly statedthat the barrierthat would be constructed is purely for
security reasons, and in noway constitutesa political border. One of the means thatthe
governmentapparently uses to conveyto opponents of the project that the course is not a
political border is by settingthe route in a mannerthat does not coincide with the Green Line.
For example, an article inHa aretz reported that, "[Ministerof Defense] Ben Eliezer
instructed the SeamArea Administrationthat the separation fence will be built on a course
that is not to be construed as a political border, but as a barrier intendedto increase
~ecurity."~~ Minister of Education Limor Livnat stated ata cabinetmeetingthat one of the
"principles that should guide construction of the fence isthat it will be a securityfence and
not be viewed asa political border."75In a documentthat Minister of the Interior Eli Yishai
submittedto tliePrime Minister, Yishai suggestedthatthe "fence's route not coincide with
the Green Line, but that it be as far awayas possible sothat it will indeed be a security, and
not a political, separationfen~e."~~
These statementsfurthersubstantiate the concernthatthe decision on tlie placement of the
barrier was not determined solely on the basis of purelymilitary-security considerations, but
that it was tainted by political considerations.It maybe that in several areas, a barrier that
ruils alongthe Green Line or even within Israeli territory would be of no less securityvalue
than if it railalongthe route selected, but such a routewas rejected due to the political cost
involved.
Quality of life of residents of Israel
The barrier's route on Stage 1,as approved by the Cabinet in August 2002,turns Qalqiliya,
Habla, and Ras 'Atiya into enclaves(see map). The route was chosen sothatthe Alfe
Menaslie settlementwould be west of the barrier. However,this leaves Route No. 55, which
joins Alfe Menashe with Israel, east of the barrier.To ensure that residents of the settlement
73 "Sharon Grants VictorytoArafat," Ha'aretz, 13June2002.
74
AmnonBarzilaiand Zvi Zarhiya,"Work onErectingtheSeam-LineFence Begins," Ha'aretz, 11
75ne 2002.(emphasis added)
76Diana Bahor,"SeparationFence: Al1 theObjections," Ynet,4 July2002. (emphasis added)
MazalMualem,"SHAS:IncludemoreCommunities West oftheFence," Ha'aretz, 4July 2002have access to Israel,the defense establishment decided to build a new roadtliatwill liiikAlfe
Menaslieto Israel.The road will pass through Matan, a town witliin1srae1.~~
Residents of Matan (2,500) stronglyopposedthis route. They contendedthat it gravely
affected their quality of life. Their main concern was thatthe new roadwould create traffic
congestion in the middle of town andharm some of its green areas. In addition,accordingto
town representatives,the route will connectHabla and Qalqiliya,thus creatinga security
threat for nearbyIsraeli communities. To effecta change in the planned route, tlie residents
set up a staff tolead the struggle,which organized demonstrationsand conducted guided tours
of the area for armyand political officia~s.~'
The pressure succeeded.Theautlioritiesalteredthe route. RoadNo. 55will continue to serve
as the traffic artery for Alfe Menashe and nearby settlements(Qarne Shomron,Ma'ale
Shomron, and Immanu'el).As a result of this change,Habla and Ras 'Atiya(6,700)will
becoine enclaves isolatedfrom Qalqiliya,wherethe residents of the two communitiesreceive
services. Habla is only two hundred meters from Qalqiliya. Afier the barrier is constructed,
tlie residents will have to traveltweiity kilometersto travel from oneto the otlier,assuiniiîg
that tlieyare allowedto drive alongthe road.
In deciding on actionsto be taken in occupied territory, the quality of lifeof Israeliresidents
is not a relevant considerationunder international law. It certainlycannotjustifj violation of
the human rights ofthousands of Palestinians.
Safeguarding antiquities
State officiaisadmittedthat the desireto protect undergroundantiquities was takeii into
account iiideterminingtlie barrier's route.For example:
Col. Dani Tirzah, SeamAdministration officia1in chargeof planning the route,
testified in court that severalfactors may require changesinthe precise location of the
barrier, amongthem ccarcheological factor^."^'
Press reports indicatethat, following determination ofthe route, the SeamArea
Administration learned about the existence of approximatelyten archeologicalsites under
the proposed route.To prevent harm to the antiquities,the Administration took different
measures in accordancewith the particularfeatures of each site. Changiiigthe barrier's
route was oneof these measure~.'~
77 Mazal Mualem,"The Battle againstthe Large Qalqiliya," Ha'aretz,27 August2002.
78 The staffs actions are documented onthe town's Website, www.matan.muni.il.
79 Minutesof the hearingof the Tel-Aviv Magistrate's Court,held on 20 November 2002, inKafr
'AqebDevelopment Cornmittee.
80Mazal Mualem,"Route Restraintscause Movement of Fence basedon Past Communities,"Ha aretz,
17October2003. In one of its respoiisesto the High Court,the StateAttorney's Office statedthat the
decision was made to move the barrier's routein an area north of Shweikeh,Tulkarin
District,a fewkilometersto the east "to protect antiquities."8'
Members of KibbutzMetzer requested that the Ministry of Defense shift tlieroute in
the area of the kibbutzsothat it runs alongthe Green Line, and thereby iiot harm access
of residentsof Qaffin, a neigliboringtown, to theirfields, whicliunder the original plan
would be located west of the barrier. Col. Tirzah visited the area and said he was willing
to grantthe request. However, a few days later, he informedthe kibbutzthat theroute
could not be changed because the area contains antiquities and there was insufficienttime
to executethe requisiteexcavations.
As occupier, Israel is required to safeguardcultural and historic sites inthe occupiedterritory.
However, tliisreason does notjusti@ the violation of human rights that would result from
inoviiigthe route a few more kilometers within the West Bank.This conclusion is
strengtlienedby tlie factthat the failureto changethe route would notdestroy tlie antiquities,
but would merelydelayconstruction work onthe barrier until completion ofthe excavation
work to protect the antiquities.
Access to religious sites
The determination of the barrier's route in the southern part ofthe Jerusalemenvelope was
part of the Cabinet's decision of August 2002. A month later, the matter was again discussed
in the Cabinet followingpoliticalpressure of ministers from Shas and theNational Religious
Party and from Jerusalem's mayor who sought, in oppositionto the opinion of the minister of
defense,to movethe route a few hundred meters south,which would defacto annex Rachel's
tomb into Jerusalein. The Cabinet approvedthe change.82
Rachel's tomb lies atthe northern tip of Bethlehem, five hundred meters south of the
checkpoint separatingBethlehem fromthejurisdictional boundary of Jerusalem (Checkpoint
300). Although Bethlehem is included within AreaA accordingto the Interim Agreement, the
area between Rachel's tomb and the checkpoint is defined as Area C and thus remains under
complete Israeli control. Rachel's tombis a sacred site in Judaism and manyJews go there to
pray. Sincethe outbreak of tlie intifada,the site has frequentlybeen closed to visitors because
of Palestinian attacks against Israeli civiliansand soldiers stationed at the site.
Along witlithe route change, itwas decided to erect an eight-meter-highwall south of
Rachel's tomb that would stretclia few hundred metersto the west. If this is done,thirty-five
81
82 State's response ial-Hadi, sec. 30.
Nadav Shargai and others"DeFacto Annexation ofRachel's' Tombinto Jerusalem Approved,"
Ha 'aretz12 September 2002.inulti-story houses, in which four hundred Palestinians live, and dozens of shops would be left
north of the wall, isolatingthein from Bethlehem. Similarto the case of the residents of tlie
enclaves lyingWestof the barrier inthe northern portion of the West Bank,residents of this
Bethlehem neighborhood are not expected to receive Israeli residentstatus,and tliey will not
be allowed to enterJerusalem.
Under international law, the entry of Israelis intothe OccupiedTerritoriesto worship and
guaranteeingtheir freedom of movement are not legitimateconsiderationsin determining
Israeli policyinthe Occupied Territories. This istrue even moreso if it results ingrave
human rights violations againsthundreds of localresidents.
Illegal expropriationof land
Taking controlof Palestinian landto erectthe separationbarrier isanother illegalelement
involved in constructingthe barrier. Tojustifi taking controlof their private land, Israel relies
on Article 23(g) of the Regulations Attached to the Hague ConventionRegarding the Laws
and Customs of War on Landof 1907,which appears in Part2 of the convention under the
heading "~ostilities."~'Reliailceon an article fromthis part ofthe regulationsis based on
Israel's perceptionof the current situation in the OccupiedTerritoriesas "armed conflict," as
ifthe occupationhad eilded.Accordingto Article 23(g), an army isprohibited from seizing or
destroying private property unlessthe action is absolutelynecessaryfor military needs. The
state argues tliat seizure of the land is indeednecessary for that purpose, and that the action is
therefore legal.
The State Attorney's Officemade sureto mention in its responsetothe High Court of Justice
that Israelis onlytaking control of this landtemporarily. The seizureordersthat were issued
to enable constructionofthe barrier indeed statedthat they were valid only until the end of
2005. However,the military legislationdoes not prevent indefiniteextension oftlie orders,
and Israel has extended such orders indefinitely in cases of landtakento establishnew
settlements and bypass roads.
In the state'sresponseto the appeal filed by residents of Kafr 'Aqeb againstthe taking of tlieir
land to build the barrier (see above),the State Attorney's Officeadmittedthat the teinporary
seizure orderswere also used to erect permanent structuresandthat they may be extended
indefinitely:
The state is not prevented fromseizing land by means of temporary seizure
ordersèven forthe purposeof erectingstructures that are not necessarily
temporary in nature. Byway of illustration: in Judea and Samaria,temporary
83 The State's response ial-Hadi, sections46-47. seizureorders have been used to erect permanent structures of inany kiiids,
such as bypass roads and Israeli communities.. .
Also within the Stateof Israel, temporary seizureorders(issued pursuant to
the Requisition of Land Arrangement (EmergencyOrder), 5715- 1955)were
used to establishthe Sde Dov airport, which al1can agree is a permanent
facility.This teinporary seinire continued by lawfulexpropriation of land in
accordancewith the Lands Ordinance (Acquisitionfor Public Purpose), of
1943.84
The permanent nature of the barrier, together with past experiencewith Israel's "teinporary"
seizuresof land, leads to the conclusionthat "taking control of land" is in fact expropriation.
Article46 of the Hague Regulations, which is located in the part that deals with occupied
territory,unequivocally states that, "it is prohibitedto expropriate private property," even for
military need~.'~The expropriation ofthe land isalso illegal if we accept Israel's argument
tliat constructionof the barrier alongthe proposed route isthe onlyway to prevent Palestinians
from entering Israel to commit attacks.
84 State's response in Kaj? 'AqebDevelopment Committee.
85 On this point, Justice Aharon Barak held that, despite the lack ofan explicit provision in the Hague
Convention, the prohibition on expropriation of property applies only to land expropriated for military
purposes and not when it isdone to meet needs of the local population and in accordance with local law
(see HCJ 393182,Jam 'iyyatIskan Al-Mualiman v. Commander of IDF Forces in Judea and Sa~naria,
Piskei Din 37 (4) 785.Conclusions
The publicdebate taking place in Israel today on the separationbarrierfocuses
primarilyon the delays in the barrier7sconstruction and the defenseestablishment's
faulty planning for its constructionThe implications ofthe project onthe Palestinian
population andthe grave hm they will sufferas a result of the barrier are ignored.
Most of the violationsof Palestinian rights havenot yet occurred,so it is not possible
atthis time to determine the magnitude of the harm. However,it is clear that erection
of the barrier will increasethe fragmentationofthe West Bankthat has resulted from
Israel's policy inthe OccupiedTerritories sincethe beginningof the current Intifada.
For the past two and a half years,the IDFhas prevented almost al1movement of
Palestiniansinthe West Bank.To accomplishthis, the IDFhas usedprolonged
curfews,staffedcheckpoints, concreteblocks, dirt piles, and trenches. This policy has
greatly disrupted every aspectof life of the local population - the heath and education
systems have difficulty operating,the economyhas never been worse, and social and
farnilyrelationshave been severed.
Erection of Stage 1ofthe barrier within the West Bankwill increasethese disruptions
and cause further harm to morethan 200,000 Palestinians. The barrier will isolate
Palestinian communities fi-omother areas in the West Bankand turn them into
enclaves between the barrier andthe Green Line. Other communitieswill become
enclaveseastofthe barrier, some due to the winding route of the barrier and some
because they will be imprisonedbetween it andthe secondarybarrierthat will be
erected east of them. Someresidents will become detached fromtheir farmlandthat
remains west of the barrier. Therestrictions on movement oftheresidentswill violate
their right to work andearna living, and families are liableto fa11intopoverty. The
barrier will also leadto the violationsof other rights:the right to medical treatment,
the rightto education, and the ability of thepopulation to carry on with their normal
lives,including maintaining a family and social life.
Israel, as the occupying force, is obliged to safeguardthe humanrights of the
Palestinians under its control. Israel's duty to protect thelife of its citizens does not
release it from its obligationto protect the Palestinians'human rights. In erecting the
separationbarrier, Israel completelydisregardsthis obligation, and in doing so
breaches international law.First, erectingthe barrier to preventattacksin Israel isthe most extreme solution and
causes the most severeharm to the Palestinian residents.Israel preferred this solution
to alternativemethodsthat would cause a lesser degree of harm. Although most of the
Palestinians who perpetrated attacks in Israel entered the country through the
checkpoints situated alongthe Green Line, and not throughthe open areas betweenthe
checkpoints, Israel decidedto erect the barrier before it solvedthe problems that were
found in the operation of checkpoints.Also,the IDF did not take any meaningful
action inthe searnareathat could prevent Palestinians fiom entering Israel, and gave
low priority to this objectiveas comparedwith other objectives, such as attacking
institutions ofthe Palestinian Authority and protecting the settlements.
Second, even if weacceptIsrael's claimthat it has no choice and must erect a
separationbarrier, Israel is required to selectthe routethat results in the fewesthurnan
rights violations possible. It has not done this. Rather, it has selecteda route that, in at
least some cases, ignores human rights considerations and is based on extraneous
considerations, such as perpetuation of some of the settlements,the desireto transmit a
political message that erectionof the barrier is not apermanentpolitical border,the
quality of life of Israeliresidents, preservation of antiquities, and access of Israeli
citizens to a religious site. These considerations led to the choice of a route that
gravely violates hurnan rights, without any securityjustification whatsoever.
Third, the decision to erect a permanent barrier in the West Bank at a cost ofhundreds
of millionsof shekels breaches the Hague Convention,whichprohibits expropriation
of land in occupiedterritory.
The overall features ofthe separation-barrierproject givethe impression that Israelis
once againrelying on security arguments to establish, unilaterally,facts onthe ground
that will affect any future arrangementbetween Israel and the Palestinians. In the past,
Israel used "imperative military needs" tojusti@ expropriation of land to establish
settlements and arguedthat the actionwas temporary. The settlements have for some
time been factson the ground. In the peace talks with the Palestinian,the settlements
are listed as oneof the issues to be discussed in negotiating the final-status agreement.
Inthe CampDavid talks that took placein July 2000, Israel's positionwas that soine
of the settlementsestablished in the West Bank would be annexed into Israel.It is reasonable to assumethat, as in the case ofthe settlements,the separation barrier
will become a permanent fact to supportIsrael's future claim to annex territories. In
any event,the geographic reality being createdby the erection ofthe barrier will
impair anypolitical solutionbased on recognition of the right of the Palestinianpeople
to self-determinationand the establishment of an independentand viable Palestinian
state.
For these reasons, B'Tselem urges Israel's governmentto:
Nullify the governrnentand Cabinet decisionsregardingthe separation barrier
and immediatelystop al1work onthe barrier, includingthe taking of land;
Reopen discussionson ways to cope with Palestinianattacks within Israel,and
examine alternativesto erectingthe separation barrier. Every decisionmust take
into accountthe limitationsresulting from international law andIsrael's dutyto
respectthe human rightsofresidentsin areasunder its control;
If it is decided that there is no choice other than to build the barrier, the
governmentmust settheroute to run alongthe Green Line or, alternatively,within
Israel. Deviations fiom thisprinciple shouldbe allowed only in exceptional cases,
based ononlytwo considerations: benefitto the local Palestinian population and
meetingIsrael's military needs in the narrow sense of the term. In any event, any
suchdeviation must be exarninedwhile taking into accountits effects onthe
human rights of the residents residingnear the barrier's route. ANNEX 14
Ms. Catherine Bertini, Persona1Humanitarian Envoy of the
Secretary-General, Mission Report,-19 August 2002,
http:lldomino.un.orglbert-nrpt.htmPersonalHumanitarianEnvoyoftheSecreta… Mission Report http://domino.un.org/bertini_rpt.
Ms. CatherineBertini,
Persona1Humanitarian Envoy of the Secretary-General
Mission Report
-- -- 11- 19 August 2002
CONTENTS
A. Introduction
B. Ovewiew
C. Obsewations
1.Crisisof Access andMobility
1.Closures and Curfewsas Security Measures
2.The Closureand CurfewRegime
3.Loss of Access to Employment and Income
4.Lossof Access toBasic ServicesandNeeds
S.The Importanceof the Upcoming Olive Harvest
II.HurnanitarianSituation
1.Indicatorsof a Growing HurnanitarianCrisis
III.Humanitarian Response and Coordination
1.Recent Expansion of Assistance Activities
2.Accessand Other Operational Constraints for Assistance Activities
3.The GapBetween IsraeliPolicy and Implementation
4.Capacityofthe Palestinian Authorityas ServiceProvider
5.CentralImportance ofUNRWAand Supportbythe Governmentof Israel
6.AppropriateFormsof Assistance
7.Coordination
IV.InternationalHumanitarian Lawand the Protectionof Civilians
1.ObligationsunderInternational HumanitarianLaw
2.Safetyand Protectionof Civilians
D. Commitments Madeby Israel
1.Immediate Results of the Mission
II.Previous CominitmentsMadeby IsraelPersonalHumanitarianEnvoyofthe Secretary-GlMissionReport
E.Recommendations
1.Measures that shouldbe taken by the Government of Israel
1.Security
2. Accessby the Population to Basic Services and Needs
3. Accessby the Population to Employrnent and Income
4. Accessby Aid Organizations
5. Releaseof Funds to the Palestinian Authority
II. easuresthat shouldbe taken by the Palestinian Authority
1.Integrityof Aid Activities and Supplies
2. EmergencyManagementPlan
III.Assistance Activities
1.Technical AssessmentMission
2. Supportto LocalMechanisms
3. Assistance tothe Palestinian Authority and PalestinianNGOs
4. TemporaryIncreasein International Staff
5.Monitoring ofCommitments
6.Coordination
7.Fundingfor UNRWA and OtherAid Organizations
Annexes:
A Mission Itinerary
B Map of Checkpointsin the West Bank
C The Relationship BetweenEconomic Growth and Closure
D Funding ofUNAgencies' Emergency Appeals
A. INTRODUCTION
1.In response to a request fromPrime Minister Sharonof Israelto the Secretary-General to assist in
addressing humanitarian needs arisingfrom the ongoing Israeli-Palestinianconflict, as well as concerns
expressedby the Quartet about the mounting humanitariancrisis,the Secretary-General appointed Ms.
CatherineBertinias his Persona1Humanitarian Envoyon 7August 2002. Ms. Bertini was askedto
travel to theregionto assessthe nature and scaleof the humanitariancrisis, to review humanitarian
needs in light of recent developments, toidentifi what needs to be done to respond to the humanitarian
situationand prevent its further deterioration, and toclarifj the respective responsibilities of al1actors
with regard tohumanitarian needs. She was further taskedto report onher observations and
recommendationsto the Secretary-General and,through him, to the Quartet.
2. Ms. Bertini traveled to theregion from 12to 19August accompaniedby a small team. The mission
was ablysupportedby the Office of the United Nations SpecialCoordinator(UNSCO). The UnitedPersonalHumanitarianEnvoyofthe Secretary-lMissionReport http://domino.un.org/bertini_rpt.htm
Nations Relief and Works Agency for PalestineRefugees in the Near East (UNRWA) also provided
significant assistance.During the mission, Ms. Bertini had the opportunityto meet with the senior
leaders of the Stateof Israel and the Palestinian Authority, includingPrime Minister Sharon,Foreign
Minister Peres and Defense Minister Ben-Eliezeras well as with Chainnan Arafat, Minister of Local
GovernmentErekat, Ministerof Social Affairs Al-Wazeer andHealth Minister Zahnoun. She traveled
to both the West Bankand Gaza where she met with a wide varietyof local leaders, women's groups,
youth, business people, farmers and labour leaders and with Palestiniansin their homes and places of
work. She visited refugeecamps, women's centres, villages and neighbourhoods throughoutthe West
Bank and Gaza.Ms. Bertini also met with representatives ofUNagencies,NGOs, the ICRC and
donors.A complete itineraryof the mission is attached asAnnex A.
B. OVERVIEW
3. The mission concludedthat thereis a serious humanitarian crisis in the West Bank and Gaza. The
crisis is not a "traditional"humanitariancrisis, such asthose causedby famines or droughts, but is
inextricably linked to the ongoing conflict and particularlyto the measures imposedby Israel in
responseto suicide and other attacks against Israelimilitary and civilian targets. Unlessthe situation
improves, the livesof Palestinians will continueto deteriorate andthe humanitarian crisis will quickly
spiral out of control. Conversely, ifthe overall environment improves sufficiently toenable a free flow
of people, goods and services,the humanitariancrisis will rapidly dissipate.
4. The situationis a crisis of access and mobility. Palestinians are subjectto a variety of closures,
curfews, roadblocks and restrictions thathave caused a near-collapse ofthe Palestinian economy, rising
unemployment, increasedpoverty, reduced commercial activities, limitedaccess to essential services
(such as water,medical care, education, emergency services) and rising dependency on humanitarian
assistance. The restrictions affect almostal1activities, renderingmost Palestinians unable to carry out
any semblance ofa normal life and subject to daily hardships, deprivations andaffronts to human
dignity.
5.Restrictionson access and mobility largely prevent travel to or fromJerusalem, Gaza and the West
Bank and allow fortravel abroad onlywith great difficulty.Palestinians,with limited exceptions, can
no longerwork in Israel. Within Gaza and particularly the West Bank,Palestinians are subject toa wide
variety of restrictions that preventor seriouslyinhibit movement and generallykeep people confined to
their villagesor cities and often to theirhouses for extended periods. Opportunitiesto earn a living,
access basic services or conduct routine business have been drasticallyreduced.
6. The mission observednumerous indicators ofthe mountinghumanitarian crisis. These include a lack
of moneyto purchase essential supplies, deteriorating healthand sanitation and increasing dependency
on food assistance. Currently,while malnutrition levels are increasing,some 1.5million Palestinians of
a total population of3.3million receive direct food assistance,a more than five-fold increase over
assistance levels twoyears ago. The overall unemployment rate has reachedan estimated 50 percent
while fullytwo thirds of the population arenow at the poverty level. Coping mechanisms,which
initially consist mostoften of borrowing and drawingon savings, are approaching exhaustion as the
economywinds down.
7. There is widespread recognitionby al1parties inthe region of the growing humanitarian crisis. Israeli
authorities have relaxed some controlsby allowing more permits for workin Israel. The Palestinian
Authority,UNagencies,NGOs, the ICRC anddonors are reluctantly re-orienting increasing resources
from development towards relief.If current conditions persist,the proportion of efforts and resources
devoted to direct humanitarian assistance will have to grow significantly.
8.The mission obtainedseveralcommitmentsfrom Israeli authorities to address soine of the most
immediate constraints.These include a cornmitmentto clearal1ambulancesat checkpoints inno longer
than 30minutes, establish mechanismsto permit swifttransit of checkpointsby Palestinians in need ofPersonalHumanitarianEnvoyoftheSecretary-G-Mission Report http://domino.un.org/bertt+w_rp
criticalmedical servicesand to ensure the regular and unintempted delivery of water to cities and
villages. Previously, Israelhad committed itself to improvingthe situation at checkpoints, includingthe
deploymentof more experienced Israeli Defense Forces (IDF) personnel,and full implementation of a
twelve-mile fishingzone off the Gaza Coast.Implementation of these five measures will Savelives,
provide a measure of relief and represent a glimmerof hope on an othenvise bleak horizon. It shouldbe
recognizedthatthese are small steps fonvard that address symptomsrather than causes. However, their
effectiveandtimely implementation is nevertheless critical.
C. OBSERVATIONS
1.Crisisof AccessandMobility
Closuresand Curfews as SecurityMeasures
9.In reviewing the effectsof the closure and curfew regimeon the Palestinian population, it shouldbe
borne in mind that the Governmentof Israel maintains thatal1of restrictions it has imposed on
Palestinians and others are intended andnecessaryto protect its own civilian population fromfurther
terrorist attacks. The Governmentof Israel also believes that thetight interna1and external closures and
curfewshavein fact prevented a significant numberof attacks inside Israel. In discussions with the
mission, Israeli government officials statedthat, in their experience, anylifting of restrictions on
movement almost immediately resultsin attemptsto plan or carry out attacks against Israeli militaryor
civilian targets. The Governmentof Israel alsojustifies restrictionson the movement of ambulancesby
citing casesin which they assert ambulances were used to transportexplosives or armed men. While
acknowledgingthe impactof the current regime on the Palestinian population and its potential to result
in an increasein violence in the medium and longterm, Israeli officials see it as their first priority to
prevent attacks on their population today.
10.Onthe other hand, among the Palestinians the mission spoke with,there is a strongly heldbelief
that manyofthe imposed restrictions have no discernable securitypurpose. Several Palestinians,
including membersof the Palestinian Authority, business leaders andordinary citizens, believe that
these measures are instead intendedas punishment and humiliationofthe Palestinian population as a
whole. Some also expressedthe view that the measures bythe Government of Israel are intended to
"breakthe backs" of the Palestiniansin preparation for a political seulement that would othenvisebe
unacceptabletothem. The most common examples that are given for measures that fa11into this
categoryare: numerouscheckpoints that are easily circumventedon foot with heavy baggage in full
view of IDFsoldiers; the " ;back-to-back"system for trucks inside the West Bank, where, accordingto
statements madeby Palestinians, often no security checks are carried out;the extensive delaysor
denialsof access for essential supplies and services,such as ambulances and water tankers; the
continuing destructionof civilian infrastructure;and extended curfews which prevent entirepopulations
from leavingtheir homes.
11.Amongdonor countries' local representatives, the mission found a high degree of skepticism about
the necessityof a range of restrictions forthe purpose of maintaining security. Several areas were
mentioned where securityarguments madeby the Government of Israeltojustie general restrictions
eitherdid notappearto be based on actual securityconcernsor did not result in the implementation of
effective securityprocedures, even whendonors were willing to helpfund them. Donor representatives
also saw a contradiction between Israeli appeals for increased international assistance tothe Palestinian
populationand the severe constraints often imposedon assistance activities, including the movement of
internationalpersonnel and essential supplies. Another concern expressedby some donors was that IDF
soldiers, responsible for administering the current closure regime, apparently are not being encouraged
to easethe burdenson the Palestinian population or the constraints onthose trying to assistthem.PersonalHumanitarian Eofthe Secretary-GenlMissionReport http://domino.un.orgh /tnertini-rpt.
12.The mission was not tasked with reviewing the measuresput in place by the GovernmentofIsrael
on the basis of their necessityor effectiveness for securitypurposes. The mission was askedto review
the humanitarian situationin the West Bank and Gaza. There is aconsensus among al1parties, andthis
report confirrns,that the current regimeof closures and curfews ishaving a devastating impact on the
Palestinianpopulation, bothon their economy and the humanitariansituation. As a consequence,it is
incurnbentupon the Governrnentof Israelto minimize as much as possible these adverse effectson
civilianswhile at the sametime safeguardingthe securityof its civilian population. In striking an
appropriatebalance betweenthese sometimes competing interests,the necessity, effectivenessand
proportionality ofal1measures taken to ensure securityshouldbe reviewed carefully and continuously.
In addition, gaps between statedofficia1Israeli policy, whichis to minimize harrn to civilians andto
fully facilitate assistance activities, andits implementationon the ground must be closed. Finally, it
must be recognizedthatthe social and economic miseryof the Palestinian people is a seriousobstacle
to achievinglasting peace and security. Sharply declining livingconditionshelp destabilize the political
environment and increasethe sense of desperation thatis so successfullyexploited by extremists.
The Closure and Curfew Renime
Closures
13.Israel has been imposing "closures"sincethe situationstarteddeteriorating in late September 2000.
There are three formsof closure restrictions: internal closure withinthe West Bank and Gaza, closureof
the border between Israel and the Occupied Palestinian Territory, andclosure of international crossings
between the Occupied Territory andJordan and Egypt. Israel has steadily tightenedeach form of
closure, particularlysincethe violent events of March andApril2002, resulting, according to the World
Bank, in the most severe and sustained mobility restrictionssince 1967.Stricter enforcement and an
increase in checkpoints, roadblocksand border controls have confinedPalestinians to progressively
smallerareas.
14.The IDF currentlyholds positions encircling most Palestinian citiesand has established an extensive
systemof checkpoints and roadblocks, including trenches, earthmounds and concrete blocks. The
nurnberof manned checkpoints varies but generally is in the rangeof 120in total, with 80to 90 in the
West Bankalone. A recentmap of checkpoints in the West Bankis attached as Annex B. The number
of additional unmanned roadblocks is estimated tobe around 200.The level of internal closure is
distributed unevenly across the Occupied Palestinian Territory. Theareas which are typically most
affected in the WestBank are the Tulkarm/Jenin/Qalqiliyacrescentin the north-west, Nablus,
RamallahIAl-Birehinthe central West Bank and Jericho, Bethlehem andHebron in the south.In Gaza
internal closuresprimarily affectnorth-south travel, at times creatingthree semi-isolated enclaves
(Gaza City,the Jalabalia area andRafahKhan Yunis). The external andinternal movement of goods
has beenfurther affectedby the introductionin May 2002of the "back-to-back system" in the West
Bank accordingto which goods have tobe offloaded from incomingtrucks and then re-loaded ont0
localtrucks at eight checkpoint locations near major Palestinian cities.Previously the" back-to-back"
systemhad onlybeen in place for the transportof goods from Israel tothe West Bank and Gaza.
Curfews
15.In additionto the closures between populationcenters, curfewshave been imposedin most major
cities and towns of theWest Bank(and someareas of Gaza),at some stage directly affecting
approximately 600,000people accordingto UNSCO estimates. The curfews areoften in force
round-the-clockand lifted onlyperiodically, resultingin some West Bank locations beingunder curfew
for 90 percent of the time.Duringcurfews,the population is not permitted toleave their houses and
IDF soldiersare authorized to shoot-to-kill anyviolators.In addition to ambulances, which are
generallypermittedto operate during curfews, a limited numberofpermits have been grantedto
municipal workers conducting emergencyrepairs. However, with theexception of certain refugee
campsand other areasthe IDFis less likely to patrol, theentirecivilianpopulation essentially remainsPersonalHumanitarian EnoftheSecretary-Gen-Mission Report
underhouse arrestduring curfews and commercial activitiescome to a halt.
16.In some cases,these periods can last for more than one week without interruption.For example,
when the mission visitedNablus on 17August, the curfew was lifted forthe first time since the
previous Friday, 9 August. Curfews arealso imposed on largervillages on a regular basis, such asthe
curfewthat was imposedon Beit Furik, a village near Nablus,about one hour after the mission departed
at around 12p.m.
17.One factor that hasmade curfews particularly disruptive anddangerous to the civilian population is
the unpredictabilityofthe liftings andthe lack of reliable information regardingtheir exact timing.
Announcementmadeby the IDF are often not heard in al1areas under curfew and residents are forced
to rely on media reportsor informa1sources (e.g.bakeries which areoften told of liftings in advance)to
learnwhen curfewsare to be lifted and for how long.
18.Whilea total of 55 localities inthe West Bank remainedunder total or partial curfew by
mid-August 2002,the curfew regime has recently been relaxedin several cities. Curfews were lifted
entirely in Qalqiliya andHebron. In Jenin, Ramallah and Bethlehemthe curfew has been lifted for 12
hours daily, except for Fridays. However, Tulkarm andNablusremain under severe curfew, with
sporadiclifting forseveral hours occurring everyfew days.InNablus, the curfew has only been lifted
for atotal of 52 hours over a period of 62 days.
Effectson the MovementofPeople, Goodsand Money
19.As a consequence ofthe restrictions on movement, most Palestinians remain confïned to their own
villages and towns,unable to access anyother areas for work, education, to purchase goods, receive
medical care or anyother purposes. SinceMay 2002, Palestiniansin the West Bank can travel between
cities and between villages and cities only with a permit issuedby the Israeli authorities that allows
travel between 5 a.m. and 7p.m. In addition, Palestinians can no longer travel from the West Bank or
Gazato Israel or East Jerusalem without special permits.These permits remain largely unavailableto
ordinaryPalestinians andare only issued for onemonth at a time. Even those Palestinians who have
specialpermits are not allowedto drive to Israelor East Jerusalem in their own vehicles which requires
separatedrivingpermitsthat are no longer available. Traveltime for al1Palestinians has increased
exponentially, in many cases byseveralhours for short distances.
20. Movements from villages to surrounding fields have become increasingly difficult. TheIDF has
been destroyingor blocking numerous side roads which farmers used to reachtheir fields. The mission
for examplehad to bypass severaltrenches and earth moundsduring a visit to olive groves near Beit
Furik. An additional factorthat has affected access to agriculturalareas is settler violence. Farmers
working in fields and orchards near settlements (which are typically builton or near mountaintops and
overlook largeareas) or near bypass roads have been shot at andstoned. Significant areas of agricultural
land have therefore become inaccessible tothem.
21. Transportinggoods, including water,raw materials, vegetables,fruit and other products, within the
West Bank andGaza has also become increasingly cumbersome andin some cases impossible. Travel
distances,time and cost for commercial transportation have been rising steadily. Checkpointsand
roadblocks that prevent transit force Palestinian trucks to take dirt roads, significantly increasingtravel
time and maintenance costs. Except for certain food transports and municipal vehicles, trucks generally
have no accessto any areas under curfew.
22. The mission spoke withthe chief executives of two major Palestinian companies about the
difficultiesthey werefacing on a daily basis. One stated that hespendsmost of his time latelyon
logistical efforts. His company's storage and maintenance cost haddoubled since additional storage
facilitieshad to beestablished and trucks were forcedto travel on dirt roads formost deliveries. Half of
the company'sstaffcurrently sleepson the factorypreinises since interna1closures prevent them froinPersona1HumanitarianEnvoyoftheSecretary-Gl MissionReport http://domino.un.orgbertini_rpt.htrr
reachinghomeor because their commuting time has multiplied, insome cases from 20 minutes to more
than three hours. The other executive recountedhow even sophisticatedequipment often had to be
transportedto remote locationson foot or by mule.
23. Certainmeaswes taken by Israeloverthe past few months have resulted in minor improvementsin
the movement of goods toGaza and accessby a small numberof people to Israel. The Kami
commercialcrossing from Israel toGaza has been reopened to a limitedamount of containerized traffic.
Insidethe Gaza Strip,the Abu Houli checkpoint that had been disrupting the movement of people and
goods sinceMay2002 has been openmore frequently. Another measuretaken by Israel was the
announced extension ofthe fishing zone off Gaza to 12miles which still must be effectively
implemented.
24. The Government of Israel has also increased the number of available work permitsfor Palestinian
laborers,particularlythose crossing from Gaza into Israel. Accordingto UNRWA, on average
approximately 8,000Palestinian workers have recently been granted permitson a daily basis as
comparedto an average of 2-3,000 permits inthe first half of 2002. In addition, Israel has increased the
numberofpermits for industrial parksthat are locatedclose to Gaza and the West Bank. Accordingto
Israeli authorities, Israelintends to increasethe number of permits forthe Erez industrial park from
3,000 to 7,000 inthe near future. Also mentioned wasthat an additional 5,000 permits have been issued
to tradesmen and afurther 3,000 to people workingin settlements. Israelintends to increase the total
number of permits gradually, dependingon security conditions.The average number of permits for
workers in Israel thatwas issued before September 2000 was 55,000.
Loss of Access to Employment and Income
25. The regimeof closures and curfews overthe past 23 months has had a cumulative and devastating
impact on the Palestinian economy. The most significant effectof this economic collapse on the
humanitarian situation has been asteep decline in income levels and purchasing power.
UhemploymentandDecline in Production
26. The economic decline hasbeen driven by a rapid rise in unemploymentin the private sector.During
the last quarter of 2000, about 100,000jobs in Israel were lost according to World Bank estimates,
including tens of thousands of workers who had workedin Israel without permits.An additional 60,000
jobs insidethe West Bank and Gaza were lostby the end of 2001 as demand collapsed and businesses
laid off workers.In additionto the reduction in permits to enter Israel, stricter controlson routes to
Israel and the settlements have discouraged the large number of non-permitholding workers who,
accordingto the World Bank, accounted for morethan half of the Palestinians workingin Israel and the
settlementsbefore September 2000. The decrease in remittances from Palestinian workersin Israel,
whose wagesare significantlyhigherthan in the West Bank and Gaza, has depressed overall purchasing
power and employmentinside the West Bank and Gaza. In addition tothesejob losses, more than
120,000additionalpeople havejoined the working-age populationsince September 2000.
27. By the end of 2001, the World Bank estimated unemployment at 26 percentcompared to ten percent
inlate 2000. According to recent UNSCO estimates, overall unemployment rates have doubledsince
then, reaching 50 percentduring the second quarterof 2002. In addition, a large percentage ofthe labor
force relies heavilyon day labor and is deprived of their incomeduringperiods under curfew.
28. The closure and curfew regime has also resultedin an almost complete cessationof productive
activity in the main WestBank centers of manufacturing, construction, commerce andprivate and
public services,which, accordingto UNSCO estimates, account for at least 75 percentof the goods and
servicesproducedin the WestBank. UNSCO also estimates that incomelosses to date for 2002 alone
are approaching$1 billion, withlosses since September 2000 at$3.3 billion. The chart attached as
Annex C illustratesthe direct correlationbetweenper capita income and the numberof annual closurePersonalHumanitarian EoftheSecretary-Gen-rMissionReport
daysin effectsince 1994.
29. The impact of recent eventson agricultural production,which is a source ofmain and secondary
incometo a largeportion ofthe rural population, has also been severe. Inaddition to physical
destruction estimatedat $167 million and extensive water shortages,the closures have been preventing
farmers from pruning, harvesting, processing and marketing a varietyof crops. The orange harvest in
Gaza, forexample,was almost entirely lostbecause no exports were allowed untilthe oranges wereno
longer marketable. Atotal collapse ofthe agriculture sector would alsohave a significant impacton
food security.As describedin paragraph 54, ruralareas already show higher levels of acute malnutrition
than urban areas.
Risin goverîyLevels
30. The level of povertyin the West Bank and Gaza has multipliedoverthe past two years. In
September 2000,the World Bank estimated that 21 percent of the population lived belowthe poverty
line (defined as lessthan $2 consurnption perperson per day). By January2001,the poverty ratiohad
risen to 33 percent. Datacollected by the Palestinian Central Bureauof Statistics (PCBS) in January
and Februaryof2002 suggests that poverty levelshave doubled since then, rising to 66.5percent (57.8
percent in the West Bank and84.6 percent in Gaza).
31.At the sametime as poverty rates have increased threefold,there has not been a general decreasein
prices. Despitean overall decrease in demand, supply hasalso decreased in many areas due to market
disruptions causedby access restrictions. In addition, the price structure in both the West Bank and
Gaza remainsheavily influencedby prices in Israel, resulting inan environment where prices remain
high but incomes have collapsed.
Loss of Access to Basic Services andNeeds
32. From a humanitarian perspective, the most devastating consequenceof the closure regime is that
large parts of thecivilian population are neither ableto access nor be provided with the most basic
services. In part, this has beenthe result of the widespreadloss of income. An increasing portionof the
population is simplyno longer ableto afford basic servicesor to meet basic needs. The closures also
have a more direct impacton access to basic services.Theyphysically prevent people in need from
reaching services, forexample patients with chronicdiseaseswho can not travel to towns and citiesto
receive treatment.At the same time, the civilian populationis often cut off from essential supplies and
servicesthat cannot reach them, for examplepatients in need of medicine and villages thatrely almost
exclusivelyon water tankers during the summer months. The servicesmost affected have been health,
education, food, and water and sanitation.
Health
33. Access restrictions continueto prevent many Palestinians in needof medical treatment from
reaching health services. Thisis especially the casefor populations under curfew and the morethan 60
percent of the population inthe West Bankthat lives in rural areas. They need accessto the hospitals
and other secondaryand tertiary health care facilitiesin towns and cities, both in emergenciesand for
regular treatment,such as dialysis and chemotherapy. Manyhospitals have reported a steep decline in
accessto services.For example, St Luke's Hospitalin Nablus has seen a 49 percent decline ingeneral
practice patients, a73 percent decline in specialty services and a53 percent decline in surgeries.
UNRWA has reported decreases in access to preventive services, including a52 percent decreasein
woinen attendingpost-natal care. Accordingto the Ministry of Health (MoH), school health
programmes have declinedby 60 percent. Medicalpersonnel have also been facingseriousdifficulties
in reachingtheir workplaces, resulting in non-attendance rates ofup to 40 percent in someareas.
34. The extensive delays anddeiiials of access at checkpoints forambulances and people in need ofPersonalHumanitarianEnvoyoftheSecretary-Gl MissionReport http://domino.un.org/bertini-rpt.htn
urgentmedicalcare have been widely reported. The missionsaw long lines of vehicles which included
ambulancesat many checkpoints it passed. Accordingto the Union of Palestinian Medical Relief
Committees (UPMRC),these delays and denials have resulted inthe birth of an estimated 39children
at checkpoints.B'Tselemhas documented numerous casesin which the IDF has prevented sickand
woundedfromcrossing checkpoints, inseveralcases resultingin the death of those being held up. The
Palestinian Red Crescent Society (PCRS) and UPMRC have reportedmore than 600 cases in which
their ambulanceshave beendenied access. Often ambulancesare unable to reach remote areas dueto
waiting periods of up to severalhours at each checkpoint. Patients areoften forced to leave ambulances,
subjectedto intrusivesearchesand required to walk across checkpoints, including womenin labour.
35. Inorderto mitigate the effectsof closures,the MoH and other health care providers havetried to
decentralize specialized servicesas much as possible, forexample through mobile clinics or by
increasing,thenumber of available dialysis machines and relocating themto more remote areas. While
some ofthesemeasures have helped increase accessin certainareas of the West Bank and Gaza,they
are extremelycostly and not sustainable overthe longterm. The movement of mobile clinics has also
been obstructedat checkpoints. A representative of a leading internationalmedical NGO told the
mission that their teams are turnedback at checkpoints 50percent of thetime. When they are permitted
to pass, medical staff are often forcedto carrytheir equipment over checkpoints.SinceMarch 2002,
internalclosùreshave broughtthe mobile clinics UNRWA had developedafter September 2000to a
virtual standstill.
36. The import and distributionof medical supplies continuesto be harnpered,both upon entry into
Israelor the OccupiedPalestinian Territory and within the West Bank and Gaza. Certainraw materials
requiredbypharmaceutical companies have been banned. Medical and other humanitarian suppliesare
subject to extensive delays atports of entryin Israel, Jordan and Egypt.The head of UPMRC told the
mission that two of the organization's ambulances hadbeen held up at the border for more than seven
months.Medical equipment from Swedenwith a valueof $20,000 had to be sent back after its was
denied entry.The Minister ofHealth of the Palestinian Authority statedthat 30new ambulances in
Jordan and Egyptwere awaiting clearanceby Israeli authorities. Withinthe West Bank - and despite
assurancesgivenbythe Coordinator for Government Activities inthe Territories that essential services
such as healthwouldnot be hindered -the MoH has been forced to enlistthe support of UN agencies
and internationalNGOs to transport medical supplies from central warehousesto more remote locations
becausePalestinianMoH workers have been denied accessto these areas.
37. An exampleof the difficultiespeople in villages face was a man who approached themission for
help in Beit Furik. His two daughters, who were seriouslyill, urgently required special milk products
fromNablus andmedicine form Tel Aviv. Because of the internal closures,their father was unable to
travel the lessthan 10kilometers to Nablusto buy the needed milk. He could also no longerorderthe
requiredmedicinefromIsrael.The mission askedan international UN (WFP) staff member tobuythe
milk forhim and return to Beit Furik thesame afternoon.He was accompanied by the head of the local
branch ofthe Palestinian Agricultural Relief Committees (PARC). Afterwaiting fortwo hours at the
checkpointjust outsideBeit Furik on their wayback fromNablus, the international UNstaff was
allowedto proceed while the Palestinian was denied accessto his village where acurfew had been
imposed in the meantime.
38. There is growingconcernamong health professionals thatimmunization stocks and vaccination
campaigns are inadequate. Immunization campaignscan only be carried out intermittently. The access
restrictionsandthe sharp increasein home deliveries have also affectedHepatitis B vaccinations and
phenylketonuria (PKU) tests which screen for twodiseases for which the timing of diagnosis and
treatment is crucialto prevent mental retardation in children. The PKU screeningtests should be
performedwithin sevendaysof birth. Underthe closure regime, infants ofteneither can not be tested at
al1or the transferof tests and results between patients, laboratories and clinics is disrupted. The
Hepatitis B vaccinations shouldbe given inthree doses at birth, onemonth and six months.PersonalHumanitarianEnvoyof the Secretary-lMissionReport http://domino.un.org/bert+mi_rp
39. Increasingly,lack of income has become one of the main reasons why families lose accessto
medical care.A study conductedby PCBS more than one year ago showed that one third of families did
not obtain neededmedical care for financial reasons. In aPCBS survey in July 2002, 76.5 percent of
householdsthatwere not able to access health servicescited lack of resources as a major cause.
UNRWAhasreported an 18.6percent increasein the number of refugees using its free health care
facilities in the West Bank,indicating that alternatives are notavailable or that the refugees can no
longer affordprivate medical care.
Education
40. The internal closureshave had extensive negative effectson education, mainly due to restrictions on
the movementof teachers and students. UNICEF estimatesthat during the 200112002school yearmore
than 600,000(61 percent)of the 986,000 childreninthe West Bank and Gaza were unable to attend
school on a regular basis.Teachingtime has also been reduced because of sharp declines in teacher
attendance.UNRWA schools in Gaza have faced particular difficulties,as almost 1,000of the Agency's
educationpersonnel livein the intermittently isolatedsouthern regions of the Gaza Strip. During a visit
to a "Children'sParliament" inGaza City, the missionwas told by the children that the delegates from
southernparts of Gaza were able to attend forthe firsttime since September 2000. UNRWA's
educationprogramme inthe West Bank, which includes95 schools,has also been severely affected
duringthe 200112002school year, with 72,571teacher daysbeing lost, compared to 5,585 in the
previous schoolyear. InApril2002,76 percent of the teaching staffwere absent and 66 percent of
schooldays werelost. Several UNRWA schools sustained darnagebecause they came under fire or
wereused as temporary detention centers.
41. While nounified examinationsat the primary school levelcould be held at the end of the 200112002
schoolyear,last year's examinationsshowed a marked deteriorationin children'sachievement levels,
particularlyin numeracyand literacy. The overall success rate decreasedby more than 20 percent in
both mathematics andArabic language. Giventhe extensive disruptions during the 200112002school
year it canbe assumed that these levels have deterioratedfurther.There isalso increasing concern about
the number of drop-outs in the coming school year. Theimpediments to access and the high adult
unemploymentrate may force more childrento leave schoolto supplement family income. Before
September2000,the rate of ten to 14year-olds employedin the West Bank was at 0.6 percent. Under
currentcircumstances this rateis likely to multiply.
Food
42. Accessto food has become more and more difficultas the ability of families to purchase foodhas
been severelycurtailed.While this is primarily causedby families' lackof money to buy food, shortages
of certaintypesof food dueto market disruptionshave also been reported. According a recent survey
conductedbyJohns Hopkins University and othersand funded by USAIDU, more than half the
Palestinianpopulation reported having to decreasefood consumption.The primary reasons cited were
lack of money(65 percent) and curfews (33percent).Fifty-threepercent of households saidthey had to
borrowmoneyto purchase food (88.8 percent in Bethlehem). About17percent of households were
forced to sel1assets to buy food, with rates highest in Gaza City andKhan Yunis. Thirty-twopercent of
al1householdsreported buying lessbread,potatoes andrice. Households are also buying less higher
priced food items, such as meat, fish and chicken.
43. Accordingto the same survey, extensive market disruptions have resultedin shortages ofhigh
protein foodssuch as fish, chicken and dairyproducts among wholesalers and retailers in the West
Bank and Gaza.Fi@-two percent of wholesalersand 48.3 percent of retailers also reported a shortage
of infant formula. In the West Bank, surveyrespondents said food shortages were causedby a
combination of road closures, checkpoints, curfewsandmilitary incursions. Shortages in northernGaza
were primarilydue to border closures thatsealthe Gaza Stripoff from Israel and the WestBank while
centraland souihern areas were more or less equally affectedby border closures and internal closures.P~rsonalHumanitarianEnvoyoftheSecretary-l MissionReport http://domino.un.org /b ertini-rpt.
WaterandSanitation
44. Water andsanitation services required for maintenance of daily needs and basic health have been
affectedbythe closure regime in severalways. The mostdirect impact relates to water supply andsolid
waste disposal. Collecting and disposingof solid waste has been particularly difficultin areas where
garbagetrucks areunable to move around freely, includingtowns and cities under extended curfews
and areaswhereseveralvillages are servicedby a smallnurnberof trucks. The collection anddisposa1
ofsolidwaste has also been problematicin the Gaza Stripwherethe landfill for Gaza City, which is
located southof the by-pass leading to Netzarim settlement, has beenout of reach for extended periods.
As aresult ofthe restrictions on garbage trucks, solidwaste is oftendisposed of inthe open, inside
populatedareas.
45. Potentiallycatastrophic from a humanitarian perspective arethe severe water shortages experienced
in manyrural areasthroughout the West Bank.T2]Especiallyduring the summer months when cisterns
run dry,an estimated 300 localitiesdepend largelyon water delivered byprivate and municipal water
tankers. Watertankers are subjectto extensive restrictionson movement imposed by checkpoints and
roadblocks throughout the West Bank. Insome cases, water tankers are not permitted accessto villages
for severaldays.They also are often not permittedto refill in urban areas during curfews. Preliminary
findingsfiom an ongoing water and sanitation surveybythe Palestinian HydrologyGroup shows that
24 of 27 surveyedvillages experienced difficulties related to water andsanitation as a result of curfews
and closures.The surveyalso shows that water and sanitation related diseases have occurred in 12of
these 27villages.
46. Whenthe mission visitedBeit Furik, a village lessthan 10kilometers southeast of Nablus, it had
not received anytanked water fornine consecutive dayssince tankers had not been allowed accessto
the vil1age.n Before thisperiod, only a fraction ofthe required watersupply of 30-50 truckloadsper
day hadbeen delivered. According to statements madebyvillagers, attemptsto reach springs in areas
surroundingthe village have been stoppedby IDFpatrols and villagershave on occasion been forcedto
discard water they had collected. The lack of sufficient water suppliesin the village has alreadyresulted
in the loss of thousands of chickens,sheep and agricultural production.
47. An additional cause for water shortagesin certain rural areas is actions taken by Israeli settlers.
Accordingto the Palestinian Hydrology Group, Israeli settlersin one case cut off water pipes which
served sevensurroundingvillages. Other cases inwhich settlers have interfered withthe water supply
for West Bankvillages have been documentedby B'Tselem.
48. As a result of increasingtransportation costs andcut-offs,the average price for tanked water has
risen considerably,by up to 80 percent in certain WestBank locations.The higher cost of water is
makingit more difficult forfamilies to meet their basic domestic and vital needs. Urban areas also
continueto experience water shortages.In some case, municipalities areunable to import spare partsfor
well pumps or pumps have tobe shut offbecause of fuel shortages.
The Importanceofthe Upcoming Olive Harvest
49. Duringthe mission's visit to the West Bank, a major concern raisedby farmers, localofficiaisand
NGO representativeswas the potential loss of the olive harvest which is due to begin in October. Olive
harvests follow a two-year cycle and this year's olive harvestis expectedto yield high levels of
production.Undercurrent circumstances, many farmers will notbe able to harvest olives andproduce
and marketolive oil.
50. The mainconstraint, as in most other areas of employmentand production, is access. Farmers are
unable to accesstheir fieldsbecause ofblocked roads, including dirt roadsthat have been dug up bythe
IDF,threatsand violence froin nearby settlers, and new requireinents for permits that insome cases arePersona!HumanitarianEnvoyofthe Secretary--MissionReport http://domino.un.org/bertini-rpt.htm
needed toreach fields onthe other side of by-passroads. Once olives are harvested, they typicallyhave
to be transportedto the nearest olive press in neighboring villages, ideallyon the same daythey are
harvestedto prevent arise in the acidity level that will render themunsuitable for oil production. Once
the olive oil is produced,farmers and merchants will need access totowns and villages to market and
buythe oil.
51.Unlessthe closureregime in the West Bank changes significantly before October,the movements of
people and goods required to harvest, produce and market olives will be curtailed so severelythat most
of the incomefarmers derive from olive oil production willbe lost. One quarter of the Palestinian
agriculturalsectoris dedicated to olive production. In addition, the number of people dependenton
revenuefiom agricultural production has increased substantiallysince workers have lost theirjobs in
Israeland the settlements. Without the income from the saleof olive oil, a large portion of the rural
population willbe even less able to afford basic goodsand services or to pay off their rising debts.
II.HumanitarianSituation
52.Beforesummarizingthe main indicators of a mountinghumanitarian crisis, it should be notedthat
the population inmuch of the West Bank and,to a lesser extent, in Gaza had reached a standardof
living comparableto other middle-income countries, including asophisticated health care systemand a
literacyrate of 98 percent. The Palestinian economyhad also begunan economic recovery in 1998that
cameto an abrupt haltin September 2000. Donor disbursements since 1993had amounted to atotal of
$4.4 billion, resultingin one of the highest levels of per capitaofficia1development assistance
anywherein the world ($195 per person per year).The value of this enormous collective effort isin
dangerof evaporatingif the situation does not improve inthe near future.
Indicatorsof a GrowingHumanitarian Crisis
IncreaseinMalnutrition
53. Preliminaryresultsofthe nutritional assessment conducted byJohns Hopkins University and others
indicate a substantial increasein the nurnber of malnourishedchildren overthe past two years, with
22.5 percent of childrenunder five suffering from acute (9.3percent) or chronic (13.2 percent)
ma1nutrition.H According to PCBS surveys,the levelof acute malnutrition in 2000 was 1.4percent
andthe level of chronic malnutrition was6.2percent.
54.The preliminaryrates are particularly highin Gazawith the survey showing 13.2percent of children
sufferingfromacute malnutrition, morethan three times the rate in the West Bank (4.3 percent).The
rate of chronicmalnourishment in Gaza (17.5 percent)is five times higher than in the West Bank (3.5
percent).Non-urbanareas show higher rates of acute malnutrition, suggesting that the traditional
food-producingareas are facing significant food securityproblems.Chronic malnutrition, on the other
hand, is moreprevalent in urban areas.
DeterioratingHealth
55. Giventhe difficulties facedby the population in accessinghealth services and medicines, a steady
increaseinmortality rates and spread ofdiseases should be expected.There is also rising concernabout
the spreadofdiseases such as diarrhea and insectborn diseases as a result of water contamination, lack
of garbage disposa1and the reduced coverage of vaccinationprogrammes, especially for childrenunder
the age of five. Forexample, some 600 cases of shigellosis (bloodydiarrhea) have been registered in the
Nablus Governoratesince July 2002.
56. The Johns Hopkins University surveyfound that the rateof anemia in Palestinian children under
five has reached 19.7percent (20.9 percent in theWestBank and 18.9percent in Gaza). Anemia is
causedby a deficiencyof iron, folic acid and dietaryprotein and can lead to impaired learningandPersona1HumanitarianEnvoyoftheSecretary-Gel Mission Report http://domino.un.org/bertini-rpt.htn
growth developmentin children,low birthweight infantsandpremature deliveries,and decreased
immunityfrominfectious diseases.
57.Lack ofaccessto health servicesis also resulting in higher ratesof infant and materna1mortality
although exact overall figureshave not been reported. According toUNRWA, the number of stillbirths
in the West Bankincreasedby 31percent between September2000and December 2001.According to
UNFPA, unattendedhome deliveries have increasedfiom three percent to 30 percent andthe
percentageofbirths attendedby a trained professional has decreasedfrom 97.4 percent to 67 percent.
Exhaustionof Coping Mechanisms
58.An analysisofthe ways in which Palestinian households have beencopingwith prolonged closure
and reduced income over thepast 23 months showsthat the humanitariancrisis is likelyto deepen
rapidlyin the verynear future. Long-term effects on the abilityof the population to re-enterthe
developmentprocess are also becoming increasinglylikely.Surveysconducted in Spring2001 byBir
Zeit Universityand PCBS andthe Johns Hopkins University surveyin Surnmer2002 show that most
coping strategiesadopted are unsustainablein the long run and havesevere long-term repercussionson
households' abilitytosustainthemselves. They either reach intrinsiclimits or result in a reduction of the
productive capacityofthe household. In both surveys,approximatelyhalf the respondents saidthey had
to borrowmoneyto purchase food. Most borrowingis done informally, from family member and local
shops and retailers.In Spring2001,only five percent borrowedfiom banks or other financial
institutions. About 17pe rcent of households had to sell assetsto buy food (2002) and around 20
percent saidthey had toselljewelry or otherpersona1effects (2001).
59. Recent surveysof West Bank villages conductedby Oxfam andits partners, andthe mission's
interviewsin both the WestBank and Gaza indicate that the networksof support that have enabled
households to copehave started breakingdown.More and more people haveexhausted their savings.
Retailers, including shopkeepers and water providers, areno longer able to give credit to poor families,
depriving the population of essential suppliesand in manycases the means to make a living.
Increasinglypoor friends and families can no longer affordto provide support to other vulnerable
member of their communities whose debts have been rising.Lack of money has also reduced the ability
of farmersto purchase basic supplies, including seedsand water.
III.HumanitarianResponse and Coordination
Recent Expansion of Assistance Activities
60. Since September2000, assistance activities have been expandingin both scope and scale to address
the increasingvulnerabilityof a continuously growingportionof the population. An estimated 1.8
million Palestinians arenow receiving food aid and other forms of emergencysupport from a varietyof
sources, including local charity institutions. This represents almost55 percent of the total population of
3.3 million inthe OccupiedPalestinian Territory and, with regard todirect food aid, a morethan
five-fold increase over assistance levels twoyearsago. The main providers of assistance and basic
services include:
0 the Palestinian Authority, particularly the Ministries ofHealth, Education and Social
Affairs as well asthe municipalities;
0 UNRWA,the second-largestprovider of social servicesafter the Palestinian Authority,
focusingprimarilyon assistance to refugees;
0 otherUN agencies, including WFP, UNDP, UNFPA and UNICEF;
0 the International Committeeof the Red Cross (ICRC) andthe Palestinian Red Crescent
Society(PCRS);
0 PalestinianNGOs, whichfor exampleaccount for a large portion of health services; and
0 internationalNGOs, which have progressivelyincreasedtheir presence since SeptemberPersonalHumanitarianEnvoyoftheSecretary--Mission Report
61.Donorshave adjusted their programmes inview of the emergency situation and have increasedtheir
budget supporttothe Palestinian Authority, financedjob creation and welfare programmes and
increasedtheir contributionsto other emergencyrelief.More than 80 percent of disbursements in 2001
were devotedto budgetsupport and emergencyrelief, comparedto less than 10percent duringthe
previousyear. Atthe same time, support for growth-oriented infrastructure and capacity building
projects decreased significantly.
62. Sincethe primary causes of the humanitarian crisis are loss of income and an inability to access
essential services and supplies,the emergencyresponse has focusedon four main areas of intervention:
food assistance,cashassistance, employment generation, and emergency measures to deliver essential
services,especially inthe health and educationsectors.
FoodAssistance
63. UNRWA has been providing humanitarian assistance (foodand cash) to a total of 216,000poor
refugeefamilies(990,000 persons), representing67 percent ofthe refugee population anda more than
nine-foldincreasein UNRWA's hardship caseload compared tothe year 2000. Likewise, the World
Food Programmehas increasedits beneficiary caseloadfrom about 150,000 before September 2000 to
500,000people today.This means that almost 1.5million people (or45 percent of the total population)
currentlyreceivesome form of direct food aid. WFP and ICRC,which also provides direct food
assistance,targetthe non-refugee population while UNRWA programmes primarily support refugees.
64. WFP intendsto deliver 70,340 metric tonsbythe end of 2002,61,250 metric tons of which consist
of wheat flour (49,000) andrice (12,250). UNRWA's emergencyfood deliveries also consist primarily
of flour andrice. Sincethe Palestinian economy is highly dependenton cereals imported fromIsrael,
WFP and UNRWAdo not expect these commoditiesto have a disincentive effect on domesticfood
production.
65. ICRCprovides food assistance to a total of 300,000 beneficiariesthrough direct food assistance
from WFP stocksfor 30,000 families in closed villagesin the West Bank (and in ad hoc cases in the
Gaza Strip)and a voucher programme thatwas launched on 13August 2002. The voucher programme
supports 120,000people inthe nine largest urbancenters in the West Bank.Each family will receive
vouchers ofup to $90 a month which theycan exchange for food and basic non-food items in
previously selectedshops, providing a stimulus to local businesses.The approved list of itemscontains
products which mustbe procured locally from rural communities(e.g. fresh food and olive oil).
CashAssistance
66. Direct cash assistancestill represents a smallportion of overall assistance activities. The social
assistance budget ofthe Ministry of Social Affairs(MOSA) for 2001 included $47 million for cash
assistanceto 45,000 families. However, lackof funds has causedthe MOSA to be severalmonths in
arrears onthese payments. UNRWA requires almost $20 millionin 2002 to provide cash assistance to
severalthousand destitute families in Gaza andthe West Bank (also see paragraph 63above).NGOs
have alsobeen usedby donors to channel cash assistanceto poor families.
67. Anotherform of financial assistancehas been provided throughUNRWA'sMicrofinance and
MicroenterpriseProgramme which provides loansto small business owners and micro entrepreneurs.
The programmehas been severely affectedsince September 2000. In2001, the value of its lendingfell
to 52 percent of the previous year. In addition,many of its clientshave been unable to repaytheir loans.
EnzploymentGeneration ProgrammesPersonalHumanitarianEnvoyoftheSecretary-Gl Mission Report http://domino.un.org/ hmertini-rpt.
68. UNRWA'semergencyemployment generation programmes, whichrequire about $56million in
2002, benefit workerswho are hired directlybythe Agencyand indirectly through community-based
projects and private-sector contracts.NGOs have also played an effective and growing rolein
employment generation,for example throughthe World Bank'sPalestinian NGO Project andthe
Palestinian AgriculturalReliefCommittees (PARC) which has played a pioneering role in ruralareas.
DeliveryofEmergency Services
69.The two main serviceproviders in the West Bank and Gaza,the Palestinian Authority and
UNRWA, havetriedto maintain previous levels of service delivery asmuch as possible. Inorderto
reach areas cut off from essential services, they and other serviceprovidershad to adopt extraordinary
measures, includinga "decentralization" strategypursuedbythe MoH that aimed at empowering local
health officials,redeployinghealth equipment to smallertowns and rural areas and the creation of
mobile clinics.UNRWAadopted similar strategies and forexamplehired large numbers of additional
teaching staffin remote locations. These measures have not been ableto compensatefor the sharpdrop
in overall serviceprovisionwhich has resulted fiom access constraintsand a decline in available
resources.As a result, a significant increase in demand for health services has been accompaniedby
severe cutbacks in supply and availability,despiteincreased effortsby international agencies, NGOs
and donors.Emergencysuppliesof water for villages that depend on local water tankers have generally
not been available.
Access and OtherOperational Constraints for Assistance Activities
70. Since September2000, it has become increasinglydifficultfor both international and Palestinian aid
organizationsand serviceproviders toprovide assistance to the Palestinian population.At the same
times ascriticalneedshave multiplied, they have faced a widening rangeof access and other
operational constraintsthat have madeit more and more difficultto meet these needs. The constraints
have resulted in a major increasein operating costs as additional internationalstaffhad to be deployed
and other costs have escalated.They have also had a disproportionateimpact on organizations that have
to rely heavily onPalestinian staff,most notably the Ministriesof the Palestinian Authority, UNRWA
and PalestinianNGOs. Organizationswith higher ratios of internationalstaff are able to operatewith
relatively fewer difficulties but nevertheless faceenormousobstacles.
Permitsfor PalestinianStaff
71. Constraintsput in place since September 2000 affect Palestinianstaff of the UN, other aid
organizationsand the Palestinian Authority most severely.Theyare subject to the same restrictions as
other Palestinians,including requirements for permits to enter Israel orEast Jerusalem fromthe West
Bank and from Gazaand, in many cases,for permits to move aroundwithin the West Bank and Gaza
itself. UNRWA,which employs a totalof 11,000Palestinians inthe Occupied Palestinian Territory,
requires 383permits for staff fromthe West Bankto access its field officein Jerusalem. After yearsin
which onlya ver- small number of such permits were denied on securitygrounds, UNRWA
experiencedgreatdifficulties in securing permitsduringmost of 2002. In a positive development in
mid-August,UNRWAreceived an additional 140permits, allowingits local staff members from the
West Bankto reportto work in Jerusalem. Thus far the Agencyhas received atotal of 247 permits of
the 383required toensurethe normal functioning of its West Bank operation.Permits have also been
issued to severalinternationalNGOs, allowing somekeyPalestinian personnel to work in Jerusalem.
However, permitsare onlyvalid for one month (comparedto threemonths before September 2000)and
permit-holdersare notallowed to driveto Israel or East Jerusalem in theirown vehicles. In addition,the
travel time and costfor Palestinian staff has increased exponentially.
72. In Gaza, al1of UNRWA's36 permits for local staffto enter Israel (and the West Bank) were
revoltedafter Septeinber2000.UNRWA must now apply for one-dayentry permits on an exceptional
basis. No drivingpermits are availableso the local staffmustrely on international drivers.In addition,PersonalHumanitmianEnvoyof the Secretary-l Mission Report http://domino.un.org /mertini-rpt
765 field staffmembersand 26 percent of Gaza headquarter staffmembers have been affectedby
interna1closures inGaza and are unable to reach their normalduty stations for much of the time.These
restrictionshave eased somewhat since the opening of the coastal roadand the Gush Qatif crossing.
GeneralRestrictionsonMovement of Personnel and AidSupplies
73. Freedom ofmovement for UN and other aid vehicles andstaff continues to be constrainedby
checkpointsandroadblocks at which vehicles face long delays andare sometimes refused entry.Access
by humanitarianconvoysand medical teams (including ambulances)to areas under curfew is frequently
denied.In addition,UN and other aid personnel have been subjectto abuse, physical harassment, arrest
and violence at checkpoints and elsewhere in the West Bank.UNpersonnel, including international
staff without diplomaticstatus,continue to be subject to afull search of vehicles and baggageat the
Erez crossingbetweenGaza and Israel. When the missionreturned to Israel from Gaza, oneof the
mission's threevehicleswas subjected to search and was heldup at the Erez crossing. This incident
occurred despiteprior written clearance foral1vehicles from Israeliauthorities.
74.Trucksof aidorganizations areonly permitted to enter and circulatewithin the West Bank upon
prior clearancewiththe IDF District Coordinator's Office@CO) and only if driven by an international
driver.UNRWAtrucks can only circulate between UNRWA warehousesin Jerusalem and its
programmes in the West Bankwith international drivers and Jerusalem identificationcard holders.
WFP had tomobilize a fleet of eight trucks with international driversand supportteams fromthe
SwedishRescue Service Agency.This short-term arrangement hasbeen extended until October 2002 to
help WFPtransport its food supplies and alsoto assist otherorganizationswhich do not have access to
internationaltrucks with international drivers.In mid-August 2002, WFP for example made the truck
fleet availableto assistthe MoH in transporting 26 tonsof medical supplies from the MoH central
warehouse in Ramallahto Tulkarm and Bethlehem.
75. Humanitarian andother cargoes for aid organizations andthe Palestinian Authority continueto
experience significant delaysand, in some case, are denied entryto Israel orthe Occupied Palestinian
Territory.Delaysare particularly severeat the port of Ashdod, where average transit time for
containerizedcargo ismore than two weeks, and at Allenby Bridge,the main entry point from Jordan.
In many cases, demurrageand storage charges that areincurred while cargoes are being inspected and
clearedhave exceededthe value ofthe goods being imported.
76. Another constraint affectingthe operations of severalUNagencies and international NGOs is that
Israelhas deniedentryvisas to staff or contractors of Arab originor nationalities. International aid
agenciesurgentlyrequire Arabic speaking staffas they expand their presence. Even regularUNstaff
membershavebeen subject to this restriction. In some cases, Arabnationals are given visas to enter
Israelbut are notpermitted to enter the West Bank or Gaza.
77.TheEuropeanUnion has docurnented 19casessinceJune 2001,of which 13occurred sincethe end
of March 2002,in which international consultants and experts whowere contracted for relief and
developmentprojects have been denied entryto Israel at Ben GurionAirport or Allenby Bridge.In the
most recentcase,three Italian humanitarian workers were refusedaccess at Ben GurionAirport on 5
August 2002despitehaving cleared their travel with the Israeli embassyin Rome. The sameworkers
had been deniedaccess on 13July 2002.
The GapBetween IsraeliPolicy and Implementation
78. Oneissue that was consistently mentionedby donors,UN agencies and other aid organizations was
the existenceof a wide gap between officia1Israelipolicy and its implementation on the ground. The
mission raisedthis concern with Israeliofficialsat the highest levels.
79. In principle,the Governrnent of Israel has agreedon severaloccasions to facilitate assistancePersonalHumanitarian EnoftheSecretary-Gen-l Mission Report http://domino.un.org/berhtt.rrp
activitiesby al1international assistance providers andto minimize negative effectsof its security
measures on the civilian population.This includes commitments andpolicies to allow free access for
staff and suppliesandto improvethe situation at checkpoints, including the passageof Palestinians
requiringmedicaltreatment. As mention above, the Coordinator for Government Activitiesin the
Territories has repeatedlygiven assurances that essential servicessuch as health would notbe hindered.
80.Despitethese assurances and commitments, there has been littleimprovement on the ground over
the past 23 months. Onthe contrary, asthe conflict has intensifiednew constraintshave been added and
manyexisting restrictions have been tightened. The entryof international staff into Israel has proven to
be extremelydifficult,as evidenced by the multiple rejections of aid workers contractedby the EU. An
even more seriousconcern is access problems to andwithin the WestBank and Gazawhich have been
describedabove.Even international staff are frequentlyturned awayby IDFsoldiers at checkpoints
despiteprevious clearance with Israeli authorities.
81.A persistentproblem since September 2000 has been the lack ofcooperation from the IDF,
particularly at the operational level andamong soldiersand mid-level officers on the ground. It is well
known and has beenrecognized by Israeli authoritiesthat many soldiers stationedat checkpoints are
relatively inexperiencedand have little trainingin interacting withthe civilian population or aid
personnel. Recent government reportshave recommended that urgent measures betaken to place more
seniorreservistsat checkpointsto decrease levels of harassment andthe number of violent incidents.
An additional concernraisedby many UN agencies anddonors is that their regular interlocutor,the
Office of the Coordinatorfor Government Activities in the Territories, while technically partof the
IDF, is unableto ensurethe effective implementationby IDFoperational personnel of most of the
measures it agreesto.
Capacity of the Palestinian Authorityas ServiceProvider
82. Throughoutthe currentcrisis,the Palestinian Authority,particularly its Ministriesof Health,
Education and SocialAffairsas well asthe municipalities, have triedto continue to deliver a minimum
level of services,despitedamageto their infrastructureand severe impediments tothe movements of
their staffand supplies.However, the Palestinian Authorityhas sufferedfiom an acute fiscal crisis since
September 2000.Itsmonthly requirements mder an austeritybudgetamount to $90 million per month,
of which about $55 millionis needed for salaries.Despite generous contributions fromEU members
and membersofthe Arab League, andits own monthly revenues of about$15 million, the Palestinian
Authority currentlyfaces monthly budget shortfalls of $30-40 million andis barely able to pay for its
salaries and utilities. This has alreadyresultedin a marked decreasein the delivery of services,
including cash assistanceto destitute families.
83. A majorreasonfor the budget crisis is that Israel, which currently collectsabout $30 million in
taxes (VAT, custom duties andpurchase tax)everymonth on behalf of the Palestinian Authority, has
been withholdingtheamounts it collects, arguing thatthe fmds may be used for corruption and in
support of terrorism if released. Israël recently agreedto releasethree tranches of $15 million each.
Sinceremittancesby Israel were suspended in December 2000, the cumulativeamount of funds held by
Israel is estimatedbythe IMFto be more than $600 million.
84.An additionalconsequence of a complete collapse of the Palestinian Authority wouldbe the loss of
employment for some 120,000government employees.Although not its primarypurpose, budget
support to the Palestinian Authority hasin effect beenthe largest emergency employment scheme. A
significantreduction in thenurnberor level of govemment salaries would significantly increase poverty
and vulnerabilitylevels,particularly in Gaza.
85. Recent news reports and discussions withUNagenciesindicatean increasing breakdown of law and
order in the OccupiedPalestinian Territory. Most uniformed Palestinian police have stopped patrolling
the streets.Sincethe IDFdoes not engage in regular law enforcement activities, this vacuumhasPersona1HumanitarianEnvoyoftheSecretary-G-Mission Report http://domino.un.ors/bertini_rpt.htm
alreadyresultedin an increase in economic crimes.As we know from many other crises, a further
breakdownof law and order will exacerbate the humanitarian condition of the most vulnerable and
undermine the international community';s ability to assistthem.
86.A furtherweakeningor complete collapse ofthe Palestinian Authority therefore would have a major
impacton the humanitarian situation. Essential servicesin several critical areas, including health,
education, water, electricity andlaw enforcement,could no longer be provided, leaving a wide gapthat
other assistanceproviders will beunable to fill. The loss ofincome for a large percentage of the
populationwould further increase poverty, withthe consequences described elsewhere inthis report.
And finally,the effecton the nation-building and peace process wouldhave indirect and potentially far
reaching consequencesfor the humanitarian situation that are difficult to predict.
Central Importanceof UNRWA and Supportby the Governmentof Israel
87. UNRWA, asthe second largest serviceprovider afierthe Palestinian Authority, has played a crucial
role inthe currentcrisis, responding to the emergencyneedsof hundreds of thousands of refugeesand a
significantnumberof non-refugees. Its mandate encompasses a totalof 1.5million refugees in the
Occupied Palestinian Territoryof which 42 percent live in refugeecamps. Education and health
services normallyaccount for 70 percent of the Agency's budget andhave resulted in high literacy,
health and otherhuman development indicators among the refugee population.Most of the refugeeshad
become self-reliantbeforethe current crisis, with only 7.4percent ofthe refugee population in the
Occupied Territoryreceivingfood or other direct assistance fromUNRWA.
88.The mission was encouraged tolearn that the Governmentof Israel fully recognizes and supports
the positive and important role of UNRWA. Both Prime Minister Sharon and Foreign Minister Perez
stressed the importanceof UNRWA and assuredthe mission of their full support for its activities. They
specificallyadvised againstcreatingnew UNorganizationsor structures and encouraged the mission to
find ways of strengtheningexisting ones.
Appropriate Formsof Assistance
89. Sincethe current situationis not a traditional humanitariancrisis, more extensive analysis and
strategicplanning is requiredto determine what typesof assistance are appropriate. One ofthe most
consistent messagesthe mission heard from almostal1Palestinians it spoke with was that they would
rather not receive charity. Manyof them said they wantedjobs insteadof handouts and dependency.
Some expressedtheir concernthat an increase in direct food assistance wouldrob people of their sense
of dignityandhope. Otherforms of assistance, particularly employmentopportunities and education,
were thought to havethe opposite effect.
90. Therewerealso some voices that pleaded for additionalfood assistance, forexample a groupof
women in Rafah, oneof the poorest areas in Gaza. The mission also heardthat many children inRafah
Savetheir summercamp lunch for family membersin more urgent need of food. When askedwhytheir
families do not have enough food,the women responded thatmost of their husbands had lost theirjobs
and that they could no longer affordto buy the foodthat is available in the market.
91. As the recommendations included in partE. of this report suggest, one ofthe main challenges for
future assistance activities will be to strikethe right balance betweenvarious forms of assistance. On
the one hand, there is a strongdesire among most people who have been impoverishedbythe recent
developmentstobe given opportunities to support themselves instead of receiving "handouts".Onthe
other hand, there are urgent needs, including nutritional needs, amongfamilies whose support networks
and coping mechanisms have been breaking down. Some ofthese needs could be met through coupons
that would enabledestitute families to purchase supplies available inthe markets. In other cases,ways
will have to be found to make supplies available that currentlycan not reach retailers and customers due
to the closureregime.Persona1Humanitarian EnoftheSecretary-Genl MissionReport
92. Discussions among the World Bank,donors and UN agencies are ongoingaboutthe appropriate
balance betweenthree main forms of intervention that will help addressthe dramatic drop in purchasing
power: food assistance,cash assistance and employment generationprogrammes. A comprehensive
reviewof employmentprogrammesis currentlyunder way and will be completed in September 2002.
This review will assistin formulating an overallstrategythat will take the factors mentioned above into
account.
93. An additional and fairlyunique featureof the current situation isthat, in September 2000, the
OccupiedPalestinian Territory wasin the midst of a major international development assistance effort.
As a consequence, a strong development community and mechanisms,which were led bythe World
Bank and severallarge bilateral donors, were in place in September 2000.Even under current
circumstances,the development actors andthe Palestinian Authorityare trying to continue their
development efforts asmuch as possible while at the sametime ensuring emergency assistance and
sufficient budget support. Achievingthe right balance between developmentassistance and emergency
assistancehas presented amajor challengeto the donor community and international organizations
active in theregion. This challenge is closely linkedto the question of what types of assistance are
appropriate and most effectiveinthe current circumstances.
94. RepresentativesofPalestinian and international NGOs as well asPalestinian Authority officials
expressed concernthat Palestinian structures, coping mechanisms and organizationsthat have grown
over manyyears should not be replaced or weakenedby an increase in international assistance. The
strong PalestinianNGO and community network, local market andcredit mechanisms, and local food
production were emphasizedas structuresthat should be protected and strengthened.
Coordination
95.Numerous coordination bodies have been establishedto bring together UN agencies, UNRWA,
UNSCO, the World Bank,donors, and international and nationalNGOs as well as Israel and the
Palestinian Authority. Thefocus of these entities, at least until recently,had remained on development
activities that have stalleddue to the intensified conflict. Considerableeffortshave been made to
re-orient existing capacities and createnew arrangementsto also address the emerging humanitarian
crisis.However, progresshas been uneven and has yet to achieve coherence.
96. The consensusview onthe ground, in whichthe mission concurs,is that no new institutions should
be established. Rather, coordination needsto be strengthenedin order to ensure that:
0 humanitarian needs are expeditiously identified and met;
coordination mechanisms are inclusive ofal1humanitarian actors;
0 existing information collection, collation and analysis capacities are strengthened;
0 no artificial divisionsoccur between humanitarian and development planning and
activities; and
consistencyof assistanceto refugees and non-refugees basedon need is ensured.
97.The volatile situation andthe nature of the key players on the ground are unique and do not lend
itselfto traditional humanitarian coordination solutions. UNRWAis the major UNprovider of
humanitarian assistance to refugees. It has also expandedits humanitarian assistanceto reach some
non-refugees overthe last year. Other agencies, especially WFP, have becomemore active in recent
years.UNSCO has a coordination mandate, originallymorepolitical/donor relations in focus.
InternationalNGOs are increasingtheir presence while the Palestinian Authority and Palestinian NGOs
remain majorchannelsof assistance. The ICRC has begun a large-scaleassistance programme in
addition to its traditional protection activities.Donors and the WorldBank play a pre-eminent role in
coordination foraand consultations.PersonalHumanitarianEnvoyoftheSecretary-Gel Mission Report http://domino.un.org/bertt7i_rp
98. The mission consultedextensively with eachof the above actors on coordination issues. While there
was no broadagreementon the most suitable structure, therewas a clear consensus that humanitarian
coordination,especially forthe current emergencyphase, needsimprovement. The mission's
recommendations in this regardare included inpart E.
IV.InternationalHumanitarianLaw and the Protectionof Civilians
ObligationsunderInternational Humanitarian Law
99. The mission was askedto clarifj the responsibilities of al1parties with regard to humanitarian
needs. Theseresponsibilities are specified in international humanitarian law.
Applicabilityof theFourth Geneva Convention
100.Israel'sobligationsin the Occupied Palestinian Territory areset out in the Geneva Convention
relative tothe Protection of Civilian Persons in Time of War, of 12August 1949 (the Fourth Geneva
Convention),to which Israel isa High Contracting Party. Palestinianresidents of the Occupied
Territory are "protectedpersons"under the Convention and Israel,which currently exercises effective
control over the Occupied Territory,is considered the OccupyingPower. While the Government of
Israel has not acceptedthedejure applicability ofthe Fourth Geneva Convention to al1territory
occupied since 1967,it has statedthat it has undertakento complywith the " humanitarian provisions"
of the Fourth GenevaConvention. Al1other High Contracting Parties, as well asthe International
Committee of the Red Cross,maintain that the Fourth GenevaConvention does apply dejure to the
Occupied Palestinian Territory.Both the General Assembly andthe SecurityCouncil have also stated
on numerous occasionsthatthe Fourth Geneva Conventionis applicable in the Occupied Territory.
ObligationsRegarding Relief
101.The Fourth GenevaConvention includes detailed provisions regardingthe Occupying Power's
obligation to ensurethe well-being of the civilian population. Israel hasthe affirmative obligation to
ensure,to the fullestextent of the means availableto it, adequatesupplies of food, medicines and other
basic needs for the populationunder its occupation. Israel also has certainobligations to permit the free
passage of relief consignments, includingmedical supplies, foodand other items intended for certain
vulnerable groups.However,the Fourth Geneva Conventionmakes clear that relief fiom other sources,
including other States andhumanitarian organizations, in no wayrelieves Israel of any of its affirmative
obligations to ensureadequate supplies of food, medicines andother basic needs.
102.Both the ICRC andsome donors have insisted that externalassistance should not be seento relieve
Israel of its basic obligations as the Occupying Power. Forexample, the ICRC stated that "[nleitherthe
fact that the ICRC conductsa relief operation in orderto respond to urgent humanitarian needs, nor
legitimate securityconcernsof the authorities relieve the OccupyingPower from its duties to ensure a
sufficient supplyforthe daily life of the whole population." Somedonor representatives have indicated
their countries'unwillingnessto bear what they regardas the financial burden of Israeli occupationand
the current closureregime. They were also concerned that the provisionof humanitarian assistancemay
help ease the political pressure on Israel to reconsider its currentpolicies.
Safetyand Protection of Civilians
103.SeveralPalestiniansthe mission spoke with requested that thenumber of international staff in the
West Bank and Gazabe increased to ensure better protectionofthe civilian population against
violations of international humanitarian andhuman rights law. They citedthe presence of international
volunteers asa factorthat had often made a major contributionto their safety and protection.
104.The UNcurrentlyhas very limited capacityto helpensurethe safety and protection of civilians,P~rsonalHumanitarianEnvoyoftheSecretary-GlMissionReport http://domino.un.org/bertini-rpt.htr
with a permanent presence of internationalstaffthat is limitedto Jerusalem, Gaza and Jenin. It should
be recalled in this context that inthe late 1980s,the Secretary-Generaldecided to deploy additional
international UNRWA staff with a specificprotectionmandate.u Until the signing of the Oslo
Accords,these additional staff members " helped to defuse tense situations, avert maltreatment of
vulnerable groups, reduce interferencewith the movement of ambulances, and facilitate the provisionof
food and medical aid during curfews". They also assisted the Commissioner-Generalin reportingto the
Secretary-Generalon protection concernson a regular basis. The Secretary-Generalthen reported tothe
SecurityCouncil in accordance with Security Council resolution 681(1990).UNRWA recently
deployeda small number of "Operation Support Officers" ;who perfom certain ofthese functions, in
particular facilitating accessfor UNRWA'sassistance. However, theydo not appearto have a specific
protection mandate and their activities are limited to UNRWA and therefore mainly concern refugees.
D. COMMITMENTS MADE BY ISRAEL
1.Immediate Results of the Mission
105.The Governmentof Israel made the following commitments tothe mission:
1.Palestinian ambulances will wait no morethan 30minutes at anycheckpoints.
2.Effective mechanisms willbe put in place to ensurethat Palestinians seeking critical medical
services(e.g. giving birth, dialysis, chemotherapy)can quicklypass al1checkpoints.
3.Problems related to water deliveries to Palestiniantowns and villages will be addressed to
ensurethat daily water deliveriesin proper quantitiescanbe supplied by Palestinian water
tankers.
4.Israel will fully facilitatethe assistance activities of international agencies,with particular
referenceto UNRWA.
5.Israel agreedto review and strengthenthe liaison arrangements between international agencies
and the IDFto facilitate assistance activities.
II. Previous Commitments Made by Israel
106.On previous occasions, the Governmentof Israel has madethe following commitments, which
were reconfirmed to the mission:
1.Israel will improve the situationat checkpoints, including the deploymentof more experienced
IDFpersonnel.
2.The fishing zone for Palestinian fishing boats off the Gazacoast is 12nautical miles. This
policy needs tobe fully implemented.
107.Otherareas in which Israeli authorities promisedto take action were the need toenable olive
farmers accessto their fields, an increasein shipments at the Karni commercial crossing,an increase in
the number of work permits for workersin Israel (including overnight workers), areview of port and
border delays of humanitarian goods,entry and visa denials for humanitarian workers, and
improveinentsin access forUN staff members.
108.Each of the commitments madeby the Government of Israelto the mission and on previous
occasions to theUNand others shouldbe fully implemented in an effective and expeditiousmanner. In
addition, any gapsbetween officia1Israeli policy andits implementation shouldbe closed.
E. RECOMMENDATIONS
1.Measures that should be taken by the Government of IsraelPersonalHumanitarianEnvoyoftheSecretary-Gl Mission Report
Securitv
109.This report fully acknowledgesthe need ofthe Government of Israel to protect its civilian
population from furtherattacks by Palestinian groups, while recognizing that every effort shouldbe
made to minimize the adverseeffects of al1security measures onthe well-being and survival ofthe
Palestinian population.
Access by the Populationto Basic Services andNeeds
110.Health :In additionto the commitments made with regard tothe transit of patients and ambulances
through checkpoints, Israelshould ensure: (i) full accessby al1people in need of medical servicesto
areas in which they areprovided; (ii) the free flow of al1medical supplies, including medicines,
vaccines and medical equipment, to and within the OccupiedPalestinian Territory, including when they
are imported or transportedby the Palestinian Authority or Palestinian NGOs; and (iii) that al1efforts
are madeto further reduce waitingtime for ambulancesto the absolute minimum required for security
purposes, if possible evenbelow the agreed 30-minutemaximum.
111. Education :Israel should ensure that al1children, students andteachershave full access to schools
and universities throughoutthe West Bank and Gaza. In particular, it should take al1measures to protect
children from exposure tomilitary conflict on their wayto and from school.
112. Waterand Sanitation : In addition to the commitments madewith regard to the movement of water
tankers, Israel should (i)ensure free access by rural communitiesto alternative water sources they are
entitled to access and (ii)provide adequate protection to rural communities and water infrastructure.
Access bythe Population toEmployment and Income
113.Israel shouldensurethe movement of goods and people toallowtrading, fanning and other forms
of economic activitiesinside the Occupied Palestinian Territory.In particular, the free movementof
workers and Palestinian trucksshould be made a priority, includinga review of the "back-to-back"
system withinthe West Bank.
114.Transshipment operationsat the Karni commercial crossingand other crossings between Israel and
Gaza shouldbe strearnlinedandexpanded to allow al1commercial andhumanitarian goods to enter and
leave Gaza inthe quantities and withthe speed required.
115.Israel should gradually increasethe number of permits for Palestinian workers to allow them to
work in Israel and Israeli settlements.
1 16.Israel should take immediate measures toallow farmers to harvest olives and to produce and
market olive oil.Inparticular, Israel shouldprovide adequate protection to rural communitiesand
enable farmers to have free access totheir fields.
Access by Aid Organizations
117.In addition to the general commitment made to facilitate the activitiesof international assistance
providers, Israel should: (i) acceleratethe import procedures for aid supplies throughal1international
entrypoints, including supplies intended forthe Palestinian Authority andPalestinian NGOs; (ii)ensure
full accessby aid workers to the West Bank and Gaza, including international aid workers of Arab
origin; (iii)ensure freedom of movement foral1aid workers, includingPalestinian UN and NGO staff,
and for aid suppliesto and withinthe West Bank and Gaza; (iv) improve accessof aid workers and
supplies to areas under curfew; and (v) ensure full respect of the privileges and immunities ofal1UN
staff and assets.PprsonalHumanitarianEnvoyof the Secretary-lMission Report
Release of Funds to the Palestinian Authority
118.To avoid the consequenceson the humanitarian situation describedin this report, Israel should
urgently acceleratethe releaseof funds it holds on behalf of the Palestinian Authority.
II.Measuresthat should be taken by the Palestinian Authority
Integrityof Aid Activities and Supplies
119.The Palestinian Authority shouldensure with al1means at its disposa1that its supplies and assets,
including ambulances and othermeans of providing services,are not used forunlawful activities or
contain any contraband.It should prosecute and effectivelybring tojustice anypersonnel and other
individuals suspected of being involvedin criminal activities.
EmergencyManagementPlan
120.The Palestinian Authority shoulddevelop, in full consultationwith relevant parties, an emergency
management plan that willensure that al1available resources are properly prioritized 'andused inan
effective and transparentmanner.
III.AssistanceActivities
Technical Assessment Mission
121.Inview of the growing humanitariancrisis, a UN inter-agencytechnical assessment mission
should be deployedas soon as possible, preferablyduringthe second half of September or early
October. The mission should be ledby OCHA at a senior level and include participation from the main
operational agenciesactive inthe region. The mission should assess needs and required assistance for
refugeesand non-refugees ona sectoral basis, with particularemphasis on the water, health, education
and food securitysectors, and should propose specific measures requiredto address the rising rates of
malnutrition and anemia(e.g., changes in the food basket, expansionof voucher programmes, school
feeding and iron fortification).It should make recommendations with regardto humanitarian
contingencyplanning, andidentiQ gaps and additional resource requirements.OCHA must review this
assessment carefullytoensurethat any additional resource requirements that may be appealed for only
includethose measurescriticalto the current needs.
122.In close consultation withUNSCO, the World Bank, Palestinianand international NGOs, as well
as the relevant Ministries ofthe Palestinian Authority, the technical assessmentmission should also
make specific proposals onhow coordination mechanisms couldbe strengthened. The proposals should
also includea suggestedmechanism for high-level and operational coordinationwith the IDF, in
additionto existing arrangements withthe Coordinator for Government Activitiesin the Territories.
Supportto LocalMechanisms
123.International assistanceproviders should generally aim to protect and strengthenexisting
Palestinian structuresand coping mechanisms and limit direct relianceby the population on
international assistance. To this end:
0 Assistance activities should avoid disrupting market mechanisms and local production.To
the extentpossible, assistance supplies shouldbe procured in the West Bank and Gaza, for
examplelocally produced olive oil.
0 Direct food assistance shouldbe limited to specialhardship cases andother limited areas of
intervention,e.g. school feeding. An expansion of employment generation,cash assistancePersonalHumanitarianEnvoyoftheSecretary-Gl Mission Report
and microcreditprogrammes should be considered.
0 Afier an initial evaluation, an expansion ofthe ICRC or other voucher programmes to other
areas in the West Bank and to Gaza should be considered.
0 Urgent measuresthat would provide direct financial assistance to families in rural areas
should be evaluated to prevent furtherasset depletion and ensure accessto basic supplies.
0 PalestinianNGOs should be effectively includedin coordination mechanisms and their
activities generallyshould be protected andsupported.
Assistanceto the Palestinian Authority and PalestinianNGOs
124.UN agencies and donors should continue to assistthe Palestinian Authority and Palestinian NGOs
inthe importof essential supplies, including vaccines, ambulances andother medical supplies, and in
the deliveryof essentialservices. Donors should continueto provide budgetary supportto the
Palestinian Authority.
TemporaryIncreasein International Staff
125.Depending on fullsupport ofthe donor community, additional international staff shouldbe
deployedon a temporary basis to the Occupied PalestinianTerritoryto facilitate access and enhance
protection capacity. Specialcare should be taken not to displace any Palestinian staff from functions
they can continueto perform.For the purposes of enhancing theprotection of civilians, the deployment
of international staffto locations in southern Gaza and inthe West Bank (e.g. Ramallah, Nablus and
Hebron) shouldbe considered.
Monitoringof Commitments
126.UNSCO should putinplace mechanisms that permitthe comprehensive monitoring of, and
appropriate follow-up regarding, complianceby Israel andthe PalestinianAuthority with commitments
made to the UNwith regardto the facilitation of assistance activities. Whenever possible,ajoint
approach shouldbe taken towards any new restrictions onthe delivery of assistance.
Coordination
127.There are currentlya variety of groups, meetingsand discussion fora among donors, UNagencies
andNGOs. The mission did notevaluate these groups in detail, but would suggest that theymaybe part
of a future review.To enhancethe coordination of hurnanitarian assistance, particularly for the
non-refugeepopulation, themission recommends that UNRWA, as the lead operational agencyin the
region, chairsa group at a senior level that is charged with action-oriented hurnanitarian coordination.
OCHA shouldprovide the secretariat for thisgroup. Existing sectoral working groups and operations
rooms, led by agencies andNGOs, should be strengthened and closely linked tothis group.
Funding for UNRWA and Other AidOrganizations
128.UNRWA, which playsa crucial role in the current crisis and enjoys the full support ofboth the
Governmentof Israel and the Palestinian Authority, is facing a severe funding shortfall of $90 million
(52 percent)under its 2002 Emergency Appeal.Donors should urgently increase their contributions to
ensure that UNRWA can implement its assistance programmes.
129.Severalother UNagencies and aid organizations, which have beenexpanding their programmes
since September 2000, also remain severelyunderfunded and shouldbe supported. Annex D provides
an overview of the currentfunding status ofthe main UN agencies active inthe region.
Mission ItineraryPprsonalHumanitarianEnvoyoftheSecretary-l Mission Report
12-19Aurzust2002
Monday,12August:
0 Arriva1in Tel Aviv
0 Meeting with Foreign Minister Peres
Tuesday, 13August:
0 BriefingbyUNSCO
Briefingby UNRWA
UN Inter-AgencyMeeting
0 Meeting with Deputy Coordinator for the Territories,Kami1Abu Rokon, and tourof Eretz
Industrial Area andKami Commercial Crossing
0 Meeting with international NGO coordination body(AIDA)
0 Meeting with ICRC, Headof Delegation
O Meeting with Head ofUSAID
Wednesday,14August:
-Visit of El Am'ariCampand UNRWA school and clinic, Ramallah
0 Meeting withChairmanArafat and Ministerfor LocalGovernmentErekat, Ramallah
0 Meeting with Dr.HananAshrawi,Memberofthe Palestinian Legislative Counsel
0 Meeting with Dr. Mustafa Barghouti, HeadU , nionof PalestinianMedicalRelief
Committee
-Meeting with Minister of Trade AlMasri
-Visitof UNRWA Women's Centre and Beitounia Industrial Zone
-Meetingwith USAmbassadorto Israel
Thursday, 15August:
0 Meeting with Minister of Social Affairs Al-Wazeer, and Ministeo rf HealthZahnoun and
Ministerof Supplies Ali Shaheen, UNSCOHQ,Gaza
TourofKarni Terminal (Palestinian side)
-Visit of Jabaliya Health Centre and Women's Programme Centre
-Visitto special hardship casefamiliesin Jabaliya
Friday, 16August:
-Visitto Children'sParliamentat El MutaseinElementarySchool in GazaCity
-Visit of Toufah area, Women's Programme Centrie n Shabwa and meetings with fainilies
-Tour of Rafah Camp, Block"O"PersonalHumanitarianEnvoyofthe Secretary-Mission Report
-Visit of UNRWARe-housing Project
-Meetingwith the Local Aid Coordination Committee, Jerusalem
-Meetingwith European Commission and Deputy Head of Danish Representative Office (intheir
capacityasPresidencyof the EU)
Saturday, 17August:
-UNRWA Commissioner General, Mr. Peter Hansen, tojoin delegation.
-Visit to BeitFurik; meeting with Mayor Atef Abu Akram andvillage council; meetings with shop
owners, familiesand farmers; briefing by Palestinian AgriculturalRelief Committee (PARC);visit of
WFP food for workand land reclamation program.
-Visit to BalataRefugee Camp, Nablus
-Meeting withNablus Mayor Ghassan Shakaa
-Tour ofNablus Old City
-Luch with business leaders and academics in Nablus
-Meetingwith Palestinian workers group and women's emergencygroup; briefing on telephone
counselingcentre
Sunday, 18August:
-Meetingwith Minister of Defence Ben Eliezer
-Meetingwith Foreign Minister Peres
-Meetingwith Prime Minister Sharon
Monday, 19August:
-Visit to Bethlehem;meeting with shopkeepers, residents and church officials
-DeparturefromTel Aviv
[insertmap @df$le)]
The Relationship Between Economic Growth and ClosurePrrsonalHumanitarianEnvoyofthe Secretary-Gl MissionReport http://domino.un.orghertini_rpt. htm
Source:World Bank and UNSCO
Funding of UN Agencies' Emergency Appeals
UNRWA
2002 EmernencvAp~eal :UNRWA has received pledgesof approximately$82.5 million against a total
requirementof $172.9million underits 2002 Emergency Appeal,leaving a funding shortfall of $90
million or 52percent. This deficitis being felt acutelyin the Agency's emergencyjob creation,food
assistance and direct relief responses.~heemergencyjob creation programmeis experiencing a
shortfall of some $40 million,or 72 percent of the requested amount. The shortfall in the emergency
food assistance programme is approximately $15 million,or 57 percent ofthe requested amount, and
the shortfall inthe emergencyeducation programme is approximately$3million, or 41 percentof the
requested amount. Of the pledgedtotal of $82.5 million, only $46.9million have been received.
RenularProgramme : In additionto its 2002 Emergency Appeal, UNRWA's regular programmes for
more than four millionrefugeesin Lebanon,SyrianArab Republic, Jordanas well as in the West Bank
and Gaza face a deficit of $24.9 million. UNRWA' s budgeted requirements fo2 r002 are $301.8million
while projected income for theyear is $276.9 million.So far, the Agency has received $184.5 million
againsttotal pledges of $271.3, leaving $86.8 millionin donorpledges unpaid. In addition,UNRWA's
funding gap with respect to capital projects in 2002 isin excess of $40 million.
Other Agencies - --- ----
nding Requirements 1 Received (US$) : SlzortfallCA)
1
- r - -PersonalHumanitarianEnvoyofthe Secretary-Gl Mission Report http://domino.un.ors/ber't'7_rp
In some cases,the above emergency requirements are in addition to regular programmesthe agencies
conduct in the OccupiedPalestinian Territory. Other agencies, including UNDP, require additional
fundingbut have not issuedseparate emergencyappeals.
PreliminaryFindingsof the Nutritional Assessmentand Sentine1Surveillance System for West
Bankand Gaza,5 August 2002.
r2]Even underregular circumstances, theavailabilityof renewable water resourcesin the Occupied
Palestinian Territory(115cubic metres per capita peryear)is amongthe lowest in the world.
This informationwas givento the mission by the mayorof the village and confirmedby
internationalUNstaff.
Acute malnutrition,or wasting, reflects inadequate nutritionin the short-term periodimmediately
precedingthe survey.Chronic malnutrition, or stunting, indicates a stateof longer-term undernutrition
and can leadto serious growth and development delays.
See theReport submittedto the Security Councilbythe Secretary-Generalin accordancewith
Resolution672,3 1October 1990(SI21919).
Written Statement submitted by Palestine