Analysis/Features
The Wall and International Law
Mohammad Abu-Harthieh, Jerusalem Center for Human Rights, August 26th, 2003

The Wall, as well as the Occupation itself as its wider context, is a manifest violation of human rights and international law. Violations include the principle of collective punishment (the wall is justified as a security structure, meaning that a whole people is to be locked in as a punishment for suicide attacks), the seizing of private property by an occupying power, demolition of houses to build the Wall, the violation of such basic human rights as the right of work and freedom of movement, and separating people from their families, another violation of basic human rights.

The most serious effect of the Wall is the prima facie annexation of the Palestinian land lying to the west of the Wall to Israel. Despite the stated aim of protecting Israeli (Jewish) citizens, the Wall does not follow the route of the Green Line which demarcates the Israeli border with the West Bank, but rather winds its way through the Occupied Territories, serving to isolate many thousands of Palestinians from the remainder of the West Bank. In addition, many of the West Bank’s settler-colonies have been brought within the folds of the Wall. Israel’s unilateral decision to construct the Wall in the Occupied Territories represents the creation of “facts on the ground” that impede the realization of the right of self-determination of the Palestinian people by preventing the territorial contiguity necessary for the establishment of an independent Palestinian State.

The major violation of international law, however, is the unilateral demarcation of a new border with the West Bank and thereby the annexation of occupied land, which is illegal under the laws of war (humanitarian law).

The various violations of international law are a logical and predictable consequence of the violation of international agreements – the 1947 United Nations Partition Plan for Palestine – that lead to the foundation of Israel in 1948 and the annexation of Jerusalem. Indeed, the actual effect of the Wall is to ensure that further tracts of Palestinian territories are de facto annexed to Israel, and to diminish even further, the possibility of there being an independent and sovereign Palestinian state in the West Bank and Gaza through creating facts on the ground that prevent any possibility of Palestinian territorial contiguity. The huge scale and the permanent nature of the Wall constitute a grievous attack on the right of the Palestinian people to self-determination.

The construction of the Wall has entailed the destruction of vast amounts of property, notably private agricultural land and olive trees. It has already been established that while the private land upon which the wall is being built may have been officially “requisitioned”, the intent and effect is that of permanent confiscation, and therefore must be treated as such.

In addition, Israel as an occupying power, must observe the rights and obligations binding on it under international humanitarian law. Under the title of “Hostilities”, Article 23(g) of the Hague Regulations 1907 (The Regulations) provides that the destruction or seizure of an enemy’s property is “especially forbidden”, unless “imperatively demanded by the necessities of war.” In the section addressing military occupation, Article 46 of the Regulations states explicitly that, “Private property cannot be confiscated.” Article 52 of the Hague Regulations allows for the requisitioning of property in occupied territories if it is “for the needs of the occupying army.” The requisition orders pertaining to land upon which the Security Wall is being built, fail to justify this need, which proves that the Wall is not being built for the “needs of the occupying army” but rather to serve the broader “security” policy of the State of Israel.

Article 53 of the Fourth Geneva Convention (The Convention) prohibits the destruction of real or personal property “except where such destruction is rendered absolutely necessary by military operations.” The official commentary to the Convention interprets the stated exception in Article 53 to mean that “The occupying forces may therefore undertake the total or partial destruction of certain private or public property in the occupied territory when imperative military requirements so demand.” The core of Article 53 of the Convention which originates in Article 23(g) and Article 46 as well as the prohibition of collective penalties in Article 50 of the Hague Regulations, are rules of customary international law.

The same applies to state land, Article 55 of the Regulations requires that public property located in occupied territory must be administered “in accordance with the rules of usufruct.” In the Elon Moreh case where the military order is similar to the military order of the wall the Israeli High Court declared that a military order for the requisitioning of Palestinian land to be invalid, holding that under Israeli administrative law political grounds are an improper purpose for a decision by the military. In this decision the court held that the dominant consideration for the military order had been political, and therefore even if the military subsequently supported the decision for military reasons, the order was invalid.

The Grave Breaches provision of the Convention defines “extensive destruction and appropriation of property, not justified by military necessity and carried out unlawfully and wantonly” to be a grave breach if committed against property protected by the Convention. To constitute a grave breach, “such destruction and appropriation must be extensive.”

Article 147 of the Fourth Geneva Convention includes among the Grave Breaches liable to penal sanction under Article 146 “excessive destruction…of property, not justified by military necessity and carried out unlawfully and wantonly.” Military necessity means the absolute requirement for measures which are essential to attain the goals of war, and which are lawful in accordance with the laws and customs of war. A rule of the law of armed conflict cannot be derogated from by invoking military necessity “unless this possibility is explicitly provided for by the rule in question.”

The Rome Statute of the International Criminal Court (ICC) has consolidated the protection of property under international law. Article 8 of the Rome Statute declares Grave Breaches of the 1949 Conventions to be War Crimes. Article 8(2)(a)(iv) states that the Grave Breach of extensive destruction and appropriation of property is a War Crime. Article 8(2)(b)(xiii), declares, “Destroying or seizing the enemy's property unless such destruction or seizure be imperatively demanded by the necessities of war,” to be a serious violation “of the laws and customs applicable in international armed conflict,” and thus a war crime.

Amidst human rights violations and war crimes taking place in the Occupied Territories and for the building of the Wall, international and humanitarian law have yet to propose practical ways in which to both highlight and bring such violations to an end. Though the term “Apartheid” surfaces the discriminatory policies of Israel and the Occupation, as well as the discriminatory application of international law, the term itself is insufficient in highlighting all of the abovementioned breaches. A term needs to be found that makes clear the nature of Occupation itself. Though the Wall may also be referred to as an imprisonment wall, the perpetual dangers of being killed by the Occupation are a reminder that the Wall within its context is more than an open-air prison. The differences between South African Apartheid and Israeli Occupation should be noted, above all since the Palestinian Territories are not a part of Israel, but are occupied, a starting point wherein the Occupation itself is illegal under international law, and the continued subject of numerous UN resolutions calling for its end.
Taking into consideration the continued violations to Palestinian human rights and human dignity by Israel, since prior to 1948, as well as the ineffectiveness of international law in relation to Palestine, Israeli policies should be clearly understood as aimed at eliminating the possibility of a viable independent Palestinian state. Among other considerations, the Palestinian people should re-examine their strategy of a two-state solution.


This is a portion of a lecture given in May 2003 at the Ittijah-sponsored study day in Shefa Amr titled “The Occupation Wall in the West Bank: Political, Social, Economic, and Legal Effects” and has been published in The Wall in Palestine: Facts, Testimonies, Analysis, and Call to Action PENGON 2003.