GA/PAL/952
19 April 2004
International Meeting on Impact of Wall Built by Israel in Occupied Palestinian Territory Enters Second Day
(Reissued as received.)
GENEVA, 16 April (UN Information Service) –- Participants in the United Nations International Meeting on the Impact of the Construction of the Wall in the Occupied Palestinian Territory, Including In and Around East Jerusalem, debated this morning whether the controversial barrier would increase the risk of terrorism in the region, whether the wall could be justified by Israel’s need for security, and whether the resulting sequestration of some Palestinians could amount to inhumane treatment and a war crime.
On the second and last day of the meeting, Orlando Requeijo Gaul of Cuba served as Chairman and moderated a discussion and a question-and-answer session.
The Permanent Representative of Senegal to the United Nations Office at Geneva, Ousmane Camara, a Member of the Special Committee to Investigate Israeli Practices Affecting the Human Rights of the Palestinian People and Other Arabs of the Occupied Territories, read out a message from the Special Committee’s President saying the meeting was a crucial step that would allow the international community to assess developments since Israeli authorities had laid down the first stone to build the wall.
The Secretary-General of the International Commission of Jurists, Nick Howen, said the organization believed the separation barrier to be an issue of intense political debate and considered it disproportionate to Israel’s justification that the wall was needed to provide security for its citizens and to prevent suicide attacks and other acts of terrorism.
The legal framework that had been construed for the enclosed areas within the wall amounted to apartheid, said Michael Sfard, a lawyer for HaMoked Centre for the Defence of the Individual in Tel Aviv. The enclaves within the occupied territories had been declared by the military commander to be a closed military zone and all those living there needed a permit. However, Mr. Sfard said, this rule did not apply to Jews.
Iain Scobbie of the School of Oriental and African Studies of the University of London said there could be grounds to argue that the effects on the livelihood of the Palestinians as a result of the wall could amount to inhumane treatment and, therefore, a grave breach of the Geneva Conventions and, thus, a war crime.
Ben Saul of Oxford University said, among other things, that all relevant parties, including the Palestinian Authority, recognized the right of Israel to protect itself from terrorist attacks. However, the United Nations General Assembly, the European Union, the World Bank, Amnesty International and other reputable organizations had criticized the barrier for violating the human rights of Palestinians without adequate justification.
John Quigley of Ohio State University said Israel’s additional and numerous unlawful actions taken during the period of occupation constituted a further contribution to the peril against which Israel purported to be protecting itself. He further contended that suicide bombings did not constitute “armed attacks” within the meaning of the United Nations Charter.
Ghasi Hanina, the Deputy Speaker of the Palestinian Legislative Council in Ramallah, said, among other things, that as a result of the wall, schools and pupils had been separated from one another and many children had been deprived of the opportunity to continue their studies. Also, farmers had been separated from their lands, seriously hindering their livelihood.
In the follow-up question-and-answer session, a member of a non-governmental organization proposed a method of achieving peace through tourism and education, and said the need of the region was to build bridges and not walls.
The Committee will reconvene at 3 p.m. to hold its fourth and final plenary which will include a debate on “The Construction of the Wall – Rendering the Two-State Solution Physically Impossible”. Recommendations will be issued at the end of the meeting.
Statements
OUSMANE CAMARA, Permanent Representative of Senegal to the United Nations Office at Geneva and Member of the Special Committee to Investigate Israeli Practices Affecting the Human Rights of the Palestinian People and Other Arabs of the Occupied Territories, read a statement on behalf of the President of the Special Committee which said, among other things, that the construction of the wall hampered the day-to-day life of the Palestinian people and endangered the peace process. The meeting was a crucial step that would allow the international community to assess developments since Israeli authorities had laid down the first stone to build the wall. United Nations statistics indicated that 190 kilometres of the wall did not follow the armistice line -– the Green Line – and, thus, separated several thousand Palestinians from towns in the occupied territories. The wall created pockets which isolated total towns; supplies and drinking water were disrupted; economic life and social services were also affected.
The Special Committee stressed that the international community was committed to resolving this crisis, which had resulted in several new enclaves. Since its creation in 1968, the Special Committee had not been allowed to visit the occupied territories yet it was still pursuing dialogue with the State of Israel to examine, in particular, the situation of human rights in the occupied territories. The Committee also studied reports issued by the United Nations Relief and Works Authority which addressed the effects of the wall in Jerusalem and how it affected the refugee population. The Special Committee also shared the opinion of the Special Rapporteur when he said the wall interfered with the right of the Palestinian people to self-determination. Violence in the occupied territories would not come to an end unless violence by the Israeli military ceased. The Special Committee encouraged the international community to redouble its efforts to ensure the effective application of the peace process “Road Map”.
NICK HOWEN, Secretary-General of the International Commission of Jurists, said the organization had worked for more than 30 years for the respect of human rights and humanitarian standards in the occupied territories. The International Commission of Jurists believed the separation barrier to be an issue of intense political debate. Israel had attempted to justify the construction of the wall by the need to provide security to its citizens and to prevent suicide attacks and other acts of terrorism. Mr. Howen focused on two questions: the applicability of human rights law and the fundamental human rights concerns caused by the barrier. Israel was bound by international humanitarian law and customary law, as reflected by the 1907 Hague Regulations, the Geneva Conventions, and other international mechanisms. Israel was a party to all major United Nations human rights treaties. Israel continued to contend that human rights treaties were not applicable in the occupied territories, but it was clear that human rights law did not cease to apply in times of occupation or war and was particularly important in situations of prolonged occupation.
The construction of the barrier in its current form and course failed the “necessity and proportionality test” under human rights law. This determination was based mainly on the following overriding observations that were applicable to the barrier: first, the barrier was not only a structure that separated Israelis from Palestinians, but it also separated Palestinian communities from each other; second, the barrier was not simply a “neutral” physical separation barrier or structure; third, the legal regime was inherently discriminatory, since it applied indiscriminately to Palestinians because of their origin; fourth, the barrier’s course was largely located within the occupied territories and would encompass the majority of Israeli settlements; and finally, it was the severity and the sweeping nature of movement restrictions that made the building of the wall disproportionate. The barrier also violated a range of other human rights provisions which, when taken together, underlined the disproportionate human rights impact of the barrier. Among other things, freedom of movement, social and cultural rights, and the rights to health and education had been seriously affected by the construction of the wall.
MICHAEL SFARD, Lawyer for HaMoked Centre for the Defence of the Individual in Tel Aviv, said the construction of the separation wall violated the principles of international law and was categorically prohibited by the laws of belligerent occupation, isolating considerable portions of the occupied territories. It could be said that the wall was illegal since it was an annexation of occupied lands and was a violent violation of international human rights law, as well as international humanitarian law. Furthermore, the wall did not follow the Green Line and invaded Palestinian territory. Mr. Sfard added that since the purpose of the wall was to address the fear of hostile elements infiltrating Jewish settlements, which were also located in the occupied territories, it was, therefore, illegal. Among other things, the wall violated the basic human rights of Palestinian civilians, such as the freedom of movement. The Geneva Convention’s relevant articles were at the heart of the legal problem that Israel was facing. Since there was a military occupation, Israel’s military had administrative and governing functions. Israel had contended that security was the reason for constructing the wall, yet the question to ask was security for whom? Mr. Sfard asked.
The construction of the wall in any aspect was illegal and violated human rights, and Israel violated its own duty to provide security and to ensure the livelihood of those in the occupied territories. The legal framework construed for the enclosed areas within the wall amounted to apartheid. The enclaves within the occupied territories had been declared by the military commander to be a closed military zone where all those living needed a permit. However, this rule did not apply to Jews. A legal framework existed that enabled any Jew to live in the occupied territories within the wall if he wished without a permit, yet a Palestinian whose family had lived there for years still needed to hold a permit. Israel should dismiss this type of racism. It had the capacity to remedy the situation itself.
IAIN SCOBBIE, of the School of Oriental and African Studies of the University of London, said that regardless of what President Bush had said on Wednesday, the position of the United States State adopted in 1977, which addressed the issue of privately owned land, and not publicly owned land, still suggested that the settlements in the occupied territories were unlawful. Property was only one aspect that international law brought to bear on this issue. There also could be grounds to argue that the affects of the livelihood of Palestinians as a result of the wall could amount to inhumane treatment and, therefore, a grave breach of the Geneva Convention and, thus, a war crime.
The protection of property was actually the oldest part of the law of occupation as listed in the 1907 Hague regulations. At the time those laws were drafted there was more concern over soldiers stealing items rather than soldiers abusing people. In general, the wall did not comply with the Hague regulations. Israel had said it would compensate people for property taken as a result of the construction of the wall, yet it had not done so. Israel had expressed that the wall was a measure taken to protect its own civilian population. But its use of privately owned land could not be seen as lawful under the laws of belligerent occupation. Occupants also had been restricted in their use of publicly owned property, such as schools and playgrounds. Under the Israeli plan, the occupant was to administer the land on a temporary basis. But even if the wall was seen as a military measure for security it could still not be justified, since it could have been built along the Green Line.
BEN SAUL, Coordinator of Oxford Public Interest Lawyers at Oxford University, said the International Committee of the Red Cross said the fundamental rights of any person should not be violated under any measures of occupation. It also said freedom of movement should not be restricted. Furthermore, under the Geneva Conventions, protected persons could not be deprived of their rights. The extensive damage inflicted on the Palestinian people as a consequence of the wall was clear. The wall was not proportionate with the military needs of Israel. Israel had suggested that most terrorist attacks had been the result of people slipping through Israeli checkpoints and had blamed the Palestinian Authority for not doing enough to prevent such attacks, yet the Israeli actions had seriously hindered the Palestinian Authority’s capacity to do so by destroying several police stations. The forcible transfer of civilians constituted a war crime. The wall was forcing Palestinians to leave their work, which amounted to forcible transfer. A restriction on freedom of movement was legitimate only if it aimed to protect the general public as a whole yet in this case, the Palestinian people did not participate in the political life of Israel and were not seen as people belonging to Israel. Therefore, the justification for this barrier was questionable.
All relevant parties, including the Palestinian Authority, recognized the right of Israel to protect itself from terrorist attacks. However, the United Nations General Assembly, the European Union, the World Bank, Amnesty International and other reputable organizations had criticized the barrier for violating the human rights of Palestinians without adequate justification. Israel’s construction of the wall in the occupied territories violated both international humanitarian law and international human rights law, and Israel had not presented any compelling justification on security grounds for the barrier as it was currently being constructed.
JOHN QUIGLEY, Professor of International Law at Moritz College of Law of Ohio State University, said the wall was legally suspect and violated Israel’s agreement in the 1993 Declaration of Principles with the PLO that it would negotiate outstanding issues. Israel had not made arguments for the merits of the construction of a wall but rather had argued why it was not illegal. Israel, by its varied and significant violations of the rules of belligerent occupation, had generated security problems it might not have faced. It was not a justification of the wall that the wall could address acts of violence resulting from Israel’s own unlawful conduct. Israel’s claim of self-defence was entirely inappropriate and could only be made as a matter of necessity. The fact that the wall was being built not on the 1949 Armistice Line but some distance into the West Bank showed that it was not a measure to safeguard against peril. The wall seriously impaired the essential interests of States towards which Israel had obligations, and it was of concern to the international community. Moreover, Israel had contributed to the situation that had resulted in suicide bombings.
Israel’s additional and numerous unlawful actions taken during the period of occupation constituted further contributions to the peril against which Israel purported to be protecting itself. Moreover, the suicide bombings did not constitute “armed attacks” within the meaning of the United Nations Charter.
GHASI HANINA, Deputy Speaker of the Palestinian Legislative Council in Ramallah, said, among other things, that as a result of the wall, schools and pupils had been separated from one another and many had been deprived of the opportunity to continue with their studies; and farmers had been separated from their lands, which seriously hindered their livelihood. Access to hospitals had also been restricted. The situation had become increasingly difficult given the fact that the gates to enclaved areas were only open during set hours during the day. Women were suffering -- several women had died at checkpoints while in labour. And many doctors had not been able to get to the areas within the wall to immunize children. Even garbage could not be collected, which added to health risks. Occupants within the wall had been deprived of the opportunity to travel abroad in many cases. At the political and legal level, much had been said to the effect that the wall was an illegal move. Israel, with the assistance of the United States, was assassinating the peace process and assassinating the Road Map, which originally had been an American proposal. And Americans and Israelis were seeking to eliminate the Palestinian leadership.
Discussion
In the follow-up discussion, a member of a non-governmental organization asked whether it was possible to legalize that which was illegal. Another non-governmental organization representative proposed that a federation be formed between Palestine and Israel, saying that without mutual respect for international law, there could be no peace. He also proposed achieving peace through tourism and education to build bridges and not walls.
Mr. SFARD said that to a large extent international law was framed on customs or State practices, and it was important for the international community to resist the building of the wall and to look for changes in the law. International humanitarian law applied to combatants and civilians, yet Israel was attempting to form a third category –- illegal combatants. He said he could not think of any international tribunal that could have jurisdiction over the question of the wall and to his recollection the only enforcement mechanism that he could think of that might deal with the matter was the Security Council. And in the Security Council, the United States had veto power.
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