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Legal interpretation of the demolition of homes in the Occupied Palestinian Territories

January 29, 2014 at 4:26 pm

Observers of the systematic Israeli abuses in the Occupied Palestinian Territories (OPTs), especially the demolition of houses and the resultant forced expulsion of the Palestinian population, may be surprised at the absence of any international legal action by Palestinian officials against Israel. They would probably conclude that the Palestinians have a “successful case in the hands of an unsuccessful lawyer”.

The demolition of houses and confiscation of Palestinian land is now well-documented in United Nations reports and by many human rights organizations around the world, and even in Israel. The Palestinian Authority (PA), however, has not fulfilled its duty by initiating legal action internationally against these serious violations by the Zionist state.

In fact, the PA’s official position on Israel’s criminal demolition of Palestinian homes has been limited to mere condemnation; this does not live up to the level of required legal responsibility. Expressions of concern about Israel’s Judaisation policies are made even by pro-Israel states, so it is totally inadequate for the PA to make such statements and little else.

That the PA is loath to take the matter further was confirmed two years ago by Hatem Abdul Qader, the former Minister of Jerusalem Affairs, who revealed that Ramallah pursues a policy of “tolerance” towards Israel and the Judaisation of Jerusalem. This tolerance extends to the absence of any legal challenges in Israeli courts against decisions to demolish homes and confiscate Palestinian land.

In this brief study, the issue of house demolitions in the Palestinian territories occupied by Israel since 1967 will be assessed from an international legal point of view. I will try to identify the legal avenues that can be followed to prosecute the Israeli government and the parties involved in these violations of international law.

Before delving into the legal details of violations related to the demolition of Palestinian homes, I will determine the international legal status of the Palestinian territories which have been occupied by Israel since the Six-Day War of June 1967.

The international legal status of the Palestinian territories

When talking about the Palestinian territories captured by Israel during the 1967 war, we often refer to the famous Security Council resolutions 242 (1967) and 338 (1973). These resolutions establish the legal basis of determining that Israel is an occupying power in the Gaza Strip and the West Bank, including East Jerusalem, and demand that it withdraws from territories so occupied. However, the reality is that there are many Security Council resolutions which confirm that the territories occupied by Israel since the war of June 1967 are considered to be occupied territory under international law and which call on Israel to withdraw from them.

For example, Security Council resolutions 237 (1967), 248 (1968), 252 (1968), 258 (1968), 259 (1968), 267 (1969), 271 (1969 ), 298 (1971), 339 (1973), 368 (1975), 446 (1979), 452 (1979), 465 (1980), 468 (1980), 469 (1980), 471 (1980), 476 (1980), 478 (1980), 484 (1980), 497 (1981), 500 (1982), 592 (1986), 605 (1987), 608 (1988), 636 (1989), 641 (1989), 672 (1990), 673 (1990), 681 (1990), 694 (1991), 726 (1992), 1073 (1996), 1322 (2000), 1397 (2002), 1515 (2003), 1850 (2008) and 1860 (2009). The resolutions confirmed that the Arab territories seized by Israel during the 1967 war, are all occupied territory.

Formal resolutions aside, similar statements have been issued by the presidency of the Security Council, including, but not limited to, statements by the incumbent Presidents of the Council on 26 January 1984, 26 August 1988, 19 June 1990, 4 January 1991, 27 March 1991 and 4 April 1992. All these statements called on Israel to abide by international legal obligations towards this land, as stipulated in the Fourth Geneva Convention of 1949 as occupied territory.

In the same vein, several resolutions have been issued by the UN General Assembly confirming that the Palestinian lands seized by Israel after the 1967 war are considered in international law to be occupied territories and to which the provisions of the Fourth Geneva Convention of 1949 apply. For example, General Assembly resolutions 2253 (ES-V) (1967) and 2254 (ES-V) (1967), 3236 (XXIX) (1974), 3237 (XXIX) (1974), 32/5 (1977) and 33/113 (1978), ES-7/2 (1980), ES-9/1 (1982), 37/135 (1982), 38/144 (1983), 4/47 (1991), 46/76 (1991), 46/82 (1991), 50/84 (1995) and 50/129 (1995).

In the advisory opinion given by the International Court of Justice on the legality of Israel’s construction of the separation wall inside the Palestinian territories occupied in 1967, the Court emphasized that the status of these territories in international law is that they are under Israeli occupation.

In addition to these international resolutions and documents, there are many legal documents and international legal and Human Rights Council resolutions, including the report of the UN fact-finding mission on the conflict in Gaza, known as the Goldstone Report. All emphasize the status of the Israeli occupation of Palestinian territories, which include Gaza and the West Bank, including East Jerusalem.

Based on “international legitimacy”, therefore, the territories occupied by Israel since the Six Day War of June 1967, are under an “illegal occupation”. Accordingly, the related provisions of international law are applicable, including the Hague Convention of 1907, the Fourth Geneva Convention of 1949 and the two additional Protocols to the four Geneva Conventions of 1949,signed in 1977. Israeli claims to the contrary mean that it is rejecting its obligations towards the occupied territories and the population therein.

Israel’s policy of demolishing Palestinian homes

The long-standing Israeli policy and practice of demolishing Palestinian homes serves as a tool of the ethnic cleansing pursued by successive Israeli governments. It is perhaps useful to recall that ethnic cleansing is one of the main pillars of the policies upon which the Jewish state was built, something that has been documented not only by international jurists, but also by Israeli historians. In his book “The Ethnic Cleansing of Palestine”, the Israeli historian Ilan Pappe presented evidence of the crime of ethnic cleansing carried out by Israeli forces in 1948; Dr. Pappe concluded that Israel’s crime resulted in the expulsion of more than 800,000 Palestinians from their country.

Three years ago, the Israeli occupying forces demolished all the houses in the village of Taweel Abu Jarwal in the Negev Desert and confiscated property belonging to the Palestinian population, including their livestock and their tents. In an example of what could be classified as the worst, most prolonged example of ethnic cleansing in human history, the people were left without shelter under a harsh sun; even their water tanks were destroyed by the Israelis.

In keeping with the illegal historical acts of the Zionist state, Israel’s current government has continued the policy of house demolition and confiscation of Palestinian land. According to the Palestinian Strategic Report 2010, the Israeli army and the Israeli-led Jerusalem Municipality demolished 194 Palestinian homes in 2010 alone. Of these, 44 houses in the Jerusalem Governorate were knocked down mostly on the pretext of having no building permit. The Israeli occupation forces also warned the owners of 1,393 Palestinian homes, including 119 homes in Jerusalem, of evacuation and the “need” for demolition. The Israeli authorities often resort to the argument of construction without a permit to give a fig-leaf of legitimacy to the demolition process.

Similarly, in 2010 the Israeli government confiscated and destroyed 13,149 dunums (1 dunum = 1,000 sq.m) of Palestinian land in the occupied West Bank, uprooting 10,364 trees. This brought the number of trees uprooted by Israeli occupation forces to 2.5 million since 1967.

It is apparent that the Israeli authorities choose the Palestinian land deliberately for its so-called development projects. Arab member of the Knesset Jamal Zahalka, head of the parliamentary National Democratic Gathering, revealed recently the Israel intention to confiscate more than 700 dunums of Palestinian land in the next few weeks to build a centre for the maintenance and repair of trains.

All of this appears to pass without any international legal accountability even though every single one of these cases falls under the provisions of the Fourth Geneva Convention of 1949, which prohibits and criminalises all acts of the confiscation of Palestinian land and the forced expulsion of the population to change the country’s demographics. Every such case is worthy of independent legal pursuit.

Demolition of houses in international law

If international laws were designed originally to protect human life and dignity, regardless of colour, gender or race, then the first thing to honour someone is not to deprive them of a decent place to live with their family.

The preamble to the Charter of the United Nations includes an indication that the objectives of the establishment of the United Nations is to maintain “fundamental human rights and the dignity and worth of the individual… And creating conditions under which justice can prevail… pushing towards promoting social progress, and the quality of life…”

Needless to say that these noble goals cannot be achieved by those deprived of their homes, or who have had their property confiscated unlawfully and had themselves and their children put on the streets by the state of Israel when it destroys Palestinian homes and confiscates land from its owners.

Israel’s policy of confiscating houses is a violation of the Universal Declaration of Human Rights of 1948, in which Article 21 stipulates that no one shall be subjected to “arbitrary interference in his private life or home…” This also violates Article 8 (1) of the European Charter of Human Rights, which affirmed the sanctity of the private residence of individuals. Article 11 (1) of the International Covenant on Economic, Social and Cultural Rights stressed on the “decent life” and having “adequate housing” for all individuals in all societies. How does someone get a “good life” when he has been pushed out of his home into the open, without shelter, with no acceptable legal reason?

Article 33 of the Fourth Geneva Convention of 1949 prohibits collective punishment, which is committed frequently by Israel against the Palestinians; family homes are often destroyed as a punishment for one family member. The same Article 33 also stipulates the “Prohibition of Reprisals against protected persons and their property”.

Article 49 of the Fourth Geneva Convention of 1949, meanwhile, banned forcible transfer of people, individually or collectively. Article 8/2/a/7 of the Statute of the International Criminal Court also prohibits illegal deportation or transfer, which is inherent in Israel’s policy of demolition and confiscation of Palestinian property.

In is clear, therefore, that the Israeli policy of house demolitions and land confiscation represents two grave crimes, a “crime against humanity” under the Statute of the International Criminal Court, and a “war crime” under the Fourth Geneva Convention of 1949.

The Israeli authorities seek to justify their violations of the law on the grounds of “self-defence”, even though the advisory opinion of the International Court of Justice on building the separation wall inside the occupied Palestinian territories, and the resultant confiscation of property, rejected the Israeli argument The Court emphasized that Israel, as an occupier, may not invoke Article 51 of the Charter of the United Nations relating to the principle of self-defence for any attack coming from the land it occupies, and said:

“And so Article 51 of the Charter of the United Nations acknowledges that there is a natural right to self-defence in the case of a state launching an armed attack on another country, however, Israel does not claim that the attacks against it can be attributed to a foreign country. The Court also notes that Israel exercises control in the Occupied Palestinian Territory and the threat which Israel considers as a justification for the construction of the wall originates within the land and not outside and thus Israel cannot in any way, claim to exercise the right to self-defence. And therefore the Court concludes that Article 51 of the Charter has no relevance to this case.”

Despite all of this, Israel persists in what it claims to be one of its rights represented in the demolition and confiscation of Palestinian property. Adding insult to injury, the Israeli parliament (Knesset) approved a while back to force the house owner to pay for the demolition costs. This is unprecedented.

Legal steps that can be taken

There are six international legal remedies which can be taken to address Israel’s violations of international law regarding house demolitions:

1. A request can be made for a special session of the UN Security Council after each case of a house being demolished or land confiscated. This is well-known to experienced politicians. The negative impact on the people under occupation must be stressed, as the demolition represents a grave breach of the Fourth Geneva Convention of 1949.

2. The UN General Assembly carries major political and international weight, and approaches can be worked through the resolution “Uniting for Peace” and the establishment of a special court for war crimes under Article 22 of the Charter to look into these serious legal violations carried out by Israel.

3. The Human Rights Council of the United Nations can be requested to form an independent commission to study the demolition of Palestinian homes in the occupied territories, such as the UN mission tasked with examining the Israeli attack on Gaza in late 2008 and early 2009, which produced the Goldstone Report.

4. A request can be made for an advisory opinion of the ICJ on the legitimacy of demolishing Palestinian homes in the occupied Palestinian territories, based on article 65 (1) of the Statute of the International Court of Justice. Such an opinion of the court, similar to the advisory opinion on the separation wall, would be a valuable legal document for use in international bodies or national courts in Western countries against the Israeli government and parties involved in such violations. The legal value gained by the Palestinians from the opinion of the Court regarding the separation wall in the occupied territories is priceless, as that judicial opinion became a source of reference and a basis on which to respond to Israeli claims in international legal forums.

5. Construction companies and parties involved in the demolition of Palestinian homes can be sued under the principle of “universal jurisdiction” as per Article 146 of the Fourth Geneva Convention 1949, in the courts of states which are signatories as demolition of homes in these circumstances is a grave breach of the Convention.

It is perhaps useful to note in this regard that in autumn 2007, the French courts agreed to look into two cases against two French companies which had agreed to build a railway in Israel, part of which passed through the occupied Palestinian territories. The railway would change the landscape it passed through and lead to the forced displacement of the local population. French legislation allows the consideration of cases in which individuals or companies are involved in violations of international law. It is unfortunate that there was no involvement by the Palestinian government in this significant legal effort.

6. Member States of the International Criminal Court can be requested to file a case in the court against Israel and to investigate the demolition of Palestinian homes and the forced expulsion of the Palestinian population. Both acts represent a “crime against humanity” under Article 7/1/d of the Statute of the Court, and a “war crime” under Article 49 of the Fourth Geneva Convention of 1949.

In this regard, Jordan, which is a member of the International Criminal Court, has arguably a special legal responsibility, as the damage inflicted on Palestinians is often deflected onto the kingdom’s territory because of the links between Palestinians and Jordanians.

It is important to stress that all of these options are important; one cannot take the place of another. The mere threat of using international law as a weapon frightens the Israeli government – which coined the term “lawfare” to describe legal action against it   because criminals fear nothing as much as the sword of justice.

If the Goldstone Report gave the Israeli authorities a legal jolt, unprecedented in the history of the Zionist state, it should have encouraged the Arabs to follow the path of international law to seek justice for the Palestinians. This is especially important as the law is often the weapon of choice of our adversaries.

The level of official Palestinian indifference to the crime of ethnic cleansing in the Occupied Palestinian Territories has to cause us to question the Palestinian Authority’s lack of legal action against what is, after all, one of the most serious of crimes. This, despite the fact that the legal options cited above would be obvious to any first-year Law student.

Perhaps that old adage of the “successful case in the hands of an unsuccessful lawyer” is beginning to look more like a “successful case in the hands of a conspiring lawyer”.

The author is a professor of international law at King Faisal University, Saudi Arabia

The views expressed in this article belong to the author and do not necessarily reflect the editorial policy of Middle East Monitor.