Israel will in law remain an Occupying Power still subject to obligations under the Fourth Geneva Convention, wrote UN Special Rapporteur John Dugard in his most recent report to the UN Human Rights Commission. In his report (E/CN.4/2005/29) to the Commission, Dugard said that Israel does not plan to relinquish its grasp on the Gaza Strip. "It plans to retain ultimate control over Gaza by controlling its borders, territorial sea and airspace. Consequently, it will in law remain an Occupying Power still subject to obligations under the Fourth Geneva Convention. Dugards report focused upon military incursions into the Gaza Strip, the demolition of homes, violations of human rights and humanitarian law arising from the construction of the Wall and the pervasiveness of restrictions of movement.

SUMMARY

In the past year, the Israel Defence Forces (IDF) have carried out intensified military incursions into the Gaza Strip. This has been interpreted as a show of force on the part of Israel so that it cannot later be said that it had withdrawn unilaterally from the territory in weakness.

In the course of these incursions, Israel has engaged in a massive and wanton destruction of property. Bulldozers have destroyed homes in a purposeless manner and have savagely dug up roads, including electricity, sewage and water lines.

In Operation Rainbow, from 18 to 24 May 2004, 43 persons were killed and a total of 167 buildings were destroyed or rendered uninhabitable in Rafah. These buildings housed 379 families (2,066 individuals). These demolitions occurred during one of the worst months in Rafah’s recent history. During the month of May, 298 buildings housing 710 families (3,800 individuals) were demolished.

In October the IDF carried out an assault on the refugee camp of Jabaliya, in response to the killing of two Israeli children in Sderot by Qassam rockets. One hundred and fourteen persons were killed and 431 injured. Many of the victims were civilians and 34 children were killed and 170 wounded. Ninety-one homes were demolished and 101 seriously damaged, affecting 1,500 people. The demolition of houses in Rafah, Jabaliya and other parts of Gaza probably qualify as war crimes in terms of the Geneva Convention relative to the Protection of Civilian Persons in Time of War (Fourth Geneva Convention).

Israel has announced that it will withdraw unilaterally from Gaza. Israel intends to portray this as the end of the military occupation of Gaza, with the result that it will no longer be subject to the Fourth Geneva Convention in respect of Gaza. In reality, however, Israel does not plan to relinquish its grasp on the Gaza Strip. It plans to retain ultimate control over Gaza by controlling its orders, territorial sea and airspace. Consequently, it will in law remain an Occupying Power still subject to obligations under the Fourth Geneva Convention.

The Wall that Israel is presently constructing within the Palestinian territory was held to be contrary to international law by the International Court of Justice in its advisory opinion of 9 July 2004. The Court held that Israel is under an obligation to discontinue building the Wall and to dismantle it forthwith. It dismissed a number of legal arguments raised by Israel relating to the applicability of humanitarian law and human rights law. In particular, it held that settlements are unlawful.

A week before the International Court of Justice rendered its advisory opinion, the High Court of Israel gave a ruling on a 40-kilometre strip of the Wall in which it held that while Israel as the Occupying Power had the right to construct the Wall to ensure security, substantial sections of the Wall imposed undue hardships on Palestinians and had to be rerouted.

Israel has not complied with the advisory opinion of the International Court of Justice. Instead, it has continued with the construction of the Wall.

Israel claims that the purpose of the Wall is to secure Israel from terrorist attacks and that terrorist attacks inside Israel have dropped by over 80 per cent as a result of the construction of the Wall. There is, however, no compelling evidence that suicide bombers could not have been as effectively prevented from entering Israel if the Wall had been built along the Green Line (the accepted border between Israel and Palestine) or within the Israeli side of the Green Line.

The following are more convincing explanations for the construction of the Wall:

1. The incorporation of settlers within Israel; 
2. The seizure of Palestinian land; 
3. The encouragement to Palestinians to leave their lands and homes by making life intolerable for them.

The course of the Wall indicates clearly that its purpose is to incorporate as many settlers as possible into Israel. This is borne out by the fact that some 80 per cent of settlers in the West Bank will be included on the Israeli side of the Wall. Despite the fact that the International Court of Justice has unanimously held that settlements are unlawful, settlement expansion has substantially increased in the past year. This is prohibited by the International Court of Justice and cannot be reconciled with the decision of the Israeli High Court itself.

A further purpose of the Wall is to expand Israel’s territory. Rich agricultural land and water resources along the Green Line have been incorporated into Israel. In recent months, Israel has manifested its territorial ambitions in the Jerusalem area. The Wall is currently being built around an expanded East Jerusalem to incorporate some 247,000 settlers in 12 settlements and some 249,000 Palestinians within the boundaries of the Wall. It must be recalled that Israel’s 1980 annexation of East Jerusalem is unlawful and has been declared “of no legal validity” by the Security Council in its resolution 476 (1980).

The construction of the Wall in East Jerusalem makes no sense from a security perspective because in many instances it will divide Palestinian communities. Moreover, it will have serious implications for Palestinians living in and near to East Jerusalem.

First, it threatens to deprive some 60,000 Palestinians with Jerusalem residence rights of such rights if they happen to find themselves on the West Bank side of the Wall.

Secondly, it will make contact between Palestinians and Palestinian institutions situated on different sides of the Wall hazardous and complicated.

Thirdly, it will prohibit over 100,000 Palestinians in neighbourhoods in the West Bank who depend on facilities in East Jerusalem, including hospitals, universities, schools, employment and markets for agricultural goods, from entering East Jerusalem. A third purpose of the Wall is to compel Palestinian residents living between the Wall and the Green Line and adjacent to the Wall, but separated from their land by the Wall, to leave their homes and start a new life elsewhere in the West Bank, by making life intolerable for them. Restrictions on freedom of movement in the “Closed Zone” between the Wall and the Green Line and the separation of farmers from their land will be principally responsible for forcing Palestinians to move.

The Israeli High Court declared that certain sections of the Wall should not be built where they caused substantial hardship to Palestinians. Logically, this ruling is applicable to sections of the Wall that have already been built. However, the Government of Israel has indicated that it will not honour its own High Court’s ruling in respect of the 200-kilometre stretch of the Wall that has already been built.

Freedom of movement is severely curtailed in the West Bank and Gaza. The inhabitants of Gaza are effectively imprisoned by a combination of wall, fence and sea. Moreover, within Gaza freedom of movement is severely restricted by roadblocks that effectively divide the small territory. The inhabitants of the West Bank are subjected to a system of curfews and checkpoints that deny freedom of movement, and they need permits to travel from one city to another.

Permits are arbitrarily withheld and seldom granted for private vehicles. Several hundred military checkpoints control the lives of Palestinians. Palestinians are denied access to many roads that are reserved primarily for the use of settlers. The Wall in the Jerusalem area threatens to become a nightmare, as tens of thousands of Palestinians will be forced to cross at one checkpoint each day, namely at Qalandiya. Finally, as already indicated, a permit system governs the lives of residents between the Wall and the Green Line and those adjacent to the Wall. This permit system is operated in an arbitrary and capricious manner.

The restrictions on freedom of movement imposed by the Israeli authorities on Palestinians resemble the notorious “pass laws” of apartheid South Africa. These pass laws were administered in a humiliating manner, but uniformly. Israel’s laws governing freedom of movement are likewise administered in a humiliating manner, but they are characterized by arbitrariness and caprice.

The report has drawn attention to the serious violations of human rights and humanitarian law flowing from the actions of the Government of Israel in the OPT. Israel is both legally and morally obliged to bring its practices and policies into line with the law. That Israel has legitimate security concerns cannot be denied. However, these concerns must be addressed within the parameters of the law for, as the High Court of Justice of Israel has rightly declared, "There is no security without law" (Beit Sourik case, para. 86).

In its advisory opinion, which has been approved by the General Assembly, the International Court of Justice indicated that there are consequences of the Wall for States other than Israel. States are reminded of their obligation not to recognize the illegal situation resulting from the construction of the Wall and not to render aid or assistance in maintaining the situation created by the construction of the Wall. Israel’s defiance of international law poses a threat not only to the international legal order but to the international order itself. This is no time for appeasement on the part of the international community.