An examination of the authority of the Military Commander to requisition privately owned land for the construction of the separation barrier

Israel Law Review

Volumn 38, Issue 1-2, 2005, Pages 247-261

  Keidar, Nir ^a  

^a HEBREW UNIVERSITY OF JERUSALEM   (Israel)

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[No Author keywords available]

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EID: 85023116818     PISSN: 00212237     EISSN: 20479336     Source Type: Journal    
DOI: 10.1017/S0021223700012693     Document Type: Article

References (70)

1. For an in-depth study of the Palestinian Terrorism and the Israeli Fight against it, see Israeli Ministry of Foreign Affairs Web-page “Four Years of Conflict: Israel's War Against Terrorism” http://www.mfa. gov.il/NR/rdonlyres/0F075769–0FBA-4B35–866D-E26EDB5AB72D/0/FourYearsofConflict.doc.
2. For a legal discussion of terrorism in the Israeli-Palestinian context, see Emanuel Gross, “Democracy's Struggle Against Terrorism: The Powers of Military Commanders to Decide Upon the Demolition of Houses, the Imposition of Curfews, Blockades, Encirclements and the Declaration of an Area as a Closed Military Area” 30 Ca. J. Int'l & Comp. L. 165.
3. In this paper, the term “Separation Barrier” is used. The ICJ used the term “Wall” in its decision. It has also been referred to as the “Security Fence”, or as a derogatory name, the “Apartheid Wall”. All these terms refers to a physical barrier, normally 50–60 meters wide, which when completed should span approximately 720 km. The barrier comprises of a 3 meter high electronic warning fence, barbed wire, a ditch on the Eastern side, a patrol road, and a fine-sand path to detect intrusions. In only 3% of its path will the Separation Barrier comprise of a physical wall, mostly where there is risk of sniper rifle against Israeli highways. See Ministry of Defense Web Site, Israel's Security Fence http://www.seamzone.mod. gov.il/Pages/Heb/mivne.htm.
4. The fact that the West Bank is governed through a regime of belligerent occupation and that Israel has the status of “Occupying Power” is no longer seriously contested. See for example Eyal Benvenisti, The International Law of Occupation (Princeton, Princeton University Press, 1993) 108 - 116
5. H.C.J. 606/78 Ayuv v. Minister of Defense P.D. 33(2) 113 (hereinafter: “Beit El case”)
6. Legal Consequences of the Construction of a Wall in the Occupied Palestinians Territory, Advisory Opinion of 9 July 2004, I.C.J.
7. See this issue of the Israel Law Review: “Legal Consequences of the Construction of a Wall in the Occupied Palestinians Territory” (2005) 38 (1–2) Is.L.R. 17 para. 78 (hereinafter: “Legal Consequences Case”).
8. See Jordan's written submissions in the Legal Consequences Case, at 5.240–5.241, available at the ICJ website: http://www.icj-cij.org/icjwww/idocket/imwp/imwpframe.htm.
9. Hague Regulations Annexed to the 1907 Convention (No. IV) Respecting the Laws and Customs of War on Land. While Israel is not a party of the convention and to the annexed regulations, it is no longer seriously disputed that the Hague Regulations are a part of international customary law, and as thus are applicable within the West Bank. See Legal Consequences Case, para. 89
10. Legality of the Use by a State of Nuclear Weapons in Armed Conflict, 1996 (I) I.C.J. 66, at para 75
11. Michael Bothe et al, eds. National Implementation of International Humanitarian Law (Dordrecht, Nijhoff, 1990) 31–33
12. Benjamin Ederington “Property as a Natural Institution: The Separation of Property from Sovereignty in International Law” 13 Am. U. Int'l L. Rev. 263, 234.
13. While this paper deals with the requisitioning of land, it is important to keep in mind that the authority to requisition land does not necessarily include the authority to destroy property built or planted on that land, such as houses or plants. The legality of such a destruction of property should be examined according to Article 53 of the Geneva Convention and Article 23(g) of the Hague Regulations. See Gerhard von Glahn, The Occupation of Enemy Territory… A Commentary on the Law and Practice of Belligerent Occupation (Minneapolis, Minneapolis University Press, 1957) 186
14. Jean Pictet, ed. Commentary on the IV Geneva Convention Relative to the Protection of Civilian Persons in Time of War (Geneva, International Committee of the Red Cross, 1958) 301
15. Jerusalem Center for Human Right, “The Separation Wall in the West Bank: Legal Analysis”, at page 6, can be found in: http://www.hamoked.org. il/itemsc.asp?currentpage=3§ion01_id=3§ion02_id=8&sort=date%20desc.
16. On the difference between confiscations, requisition and contribution of property see Israeli Defense Force, Authority of the Army in Occupied Territories (Tel Aviv, Israeli Defense Force, 1961) 40 [in Hebrew].
17. With regards to public property, International Law grants the occupying power the authority to seize and use such property. According to Article 55 of the Hague Regulations, with regards to “buildings, real estate, forests, and agricultural estates”, the occupying power shall be “regarded only as administrator and usufructuary of public buildings”. The question for the authority to use public property for the construction of the Separation Barrier is thus a separate question, and will not be dealt with in this paper. The United Kingdom Ministry of Defense, The Manual of the Law of Armed Conflict (Oxford, Oxford University Press, 2004) 303
18. Israeli Defense Force, The Manual of the Law of Armed Conflict, at 29
19. see also H.C.J. 277/84 Tzabri Mahmu v. Appeals Commission 40(2) P.D. 57.
20. On the issue of the requisitioning of private property, the Israeli Foreign Ministry states that: “Israel has made the use of public lands a priority in building the security fence, in order to avoid, as much as possible, the use of private lands. If this is not possible, then private land is requisitioned, not confiscated, and it remains the property of the owner. Legal procedures allow every owner to file an objection to the use of their land. When private lands are used, owners are offered full compensation, in accordance with the law; this compensation is offered both as a lump sum and also on a monthly basis.” See Israeli Foreign Military Web Site, “Concept and Guidelines: A Temporary Measure”, P.D.
21. On the sanctity of private property in International Law in general, see Ederington, P.D.
22. H.C.J. 10497/02 Hebron Municipal Government v. The Military Commander for the West Bank (not yet published), para. 8.
23. H.C.J. 2717/96 Wafa Ali v. Minister of Defense 50(2) P.D. 848, 852–853.
24. On the issue of the applicability of the Fourth Geneva Convention in the Occupied Palestinian Territories, see David John Ball, “Toss the Travaux?: Application of the Fourth Geneva Convention to the Middle East Conflict- A Modern (Re)Assessment” 79 N.Y.U.L. Rev. 990
25. claiming in detail that the Convention is in fact not applicable. For other opinions, see also Adam Roberts, “Prolonged Military Occupation: The Israeli-Occupied Territory Since 1967” 84 Am. J. Int'l L. 44
26. Ardi Imseis, “On the Fourth Geneva Convention and the Occupied Palestinian Territory” 44 Harv. Int'l L.J. 65
27. Legal Consequences Case, Harv. Int'l L.J., at para. 91–101.
28. Also see The Manual of the Law of Armed Conflict, Harv. Int'l L.J., at 299–300.
29. While article 23(g) also states that “it is especially forbidden… to … seize the enemy's property, unless such … seizure be imperatively demanded by the necessities of way”, the ICJ rules that it is irrelevant to the construction of the Separation Barrier due to the fact that the Article is located in Section II which deals with hostilities and specifically within a Chapter titled “Means of Injuring the Enemy, Sieges and Bombardments” it is irrelevant in the Occupied Territories, and that only Section III which deals with military authority in occupied territories is relevant. See Legal Consequences Case, Harv. Int'l L.J. at para. 124.
30. Legal Consequences Case, Harv. Int'l L.J.
31. H.C.J. 2056/04 Beit Sourik Village Council v. Government of Israel 58(5) P.D. 807.
32. See this issue of the Israel Law Review for an English translation of this decision: “H.C.J. 2056/04 Beit Sourik Village Council v. The Government of Israel 58(5) P.D. 807” (2005) 38 (1–2) Is.L.R. 83.
33. Legal Consequences Case, Is.L.R., at para. 132.
34. Is.L.R., para. 137.
35. See Beit El case, Is.L.R.
36. The Manual of the Law of Armed Conflict, Is.L.R., at. 299–302
37. Ernst H. Feilchenfeld, The International Economic Law of Belligerent Occupation (Washington, Carnegie Endowment for International Peace, 1942) 37–38
38. Georg Schwarzenberger, International Law as Applied by International Courts and Tribunal (London, Stevens & Sons Limited, 1968) vol. 2 269.
39. H.C.J. 606/78 Ayuv v Minister of Defense 33(2) P.D 113.
40. Schwarzenberger, P.D.
41. Feilchenfeld, P.D.
42. For example, it has been stated that “Article 52 states that requisitions made must be for military necessity and compensation must be made as soon as possible. Military necessity is understood by modern civilizations to be measures which are indispensable for the securing of war objectives, and which are lawful according to the modern law and uses of war.” Amy Click, “German Pillage and Russian Revenge, Stolen Degas, Fifty Years Later - Who's Art is it Anyway” 5 Tulsa J. Comp. & Int'l L. 185, 200.
43. See Israeli Foreign Ministry Web Page “The Reasons Behind the Fence: First Priority - Saving Lives” http://securityfence.mfa.gov.il/mfm/web/main/Document.asp?SubjectID=45219&MissionlD=45187& LanguageID=0&StatusID=3&DocumentID=-l: “The security fence has only one purpose: to keep the terrorists out and thereby save the lives of Israel's citizens, Jews and Arabs alike…”.
44. Yoram Dinstein, The Laws of War (Tel Aviv, Shoken, 1983) 229, 234–235 [in Hebrew].
45. Hans-Peter Gasser, “Protection of the Civilian Population” in Dieter Fleck, ed. The Handbook of Humanitarian Law in Armed Conflict (Oxford, Oxford University Press, 1995) 555.
46. On the scope of Article 43, see Benvenisti, The Handbook of Humanitarian Law in Armed Conflict, at ch. 2.
47. H.C.J. 390/79 Duikat v. Government of Israel 34 P.D. 1
48. see also Meir Shamgar, ed. Military Government in the Territories Administered by Israel, 1967–1980: the Legal Aspects (Jerusalem, The Harry Sacher Institute for Legislative Research and Comparative Law, 1982) 153.
49. H.C.J. 2056/04 Beit Sourik v. The Government of Israel, Military Government in the Territories Administered by Israel, 1967–1980: the Legal Aspects, at para. 27.
50. Military Government in the Territories Administered by Israel, 1967–1980: the Legal Aspects.
51. H.C.J. 393/82 Jam'iyat Ascan v. The Military Commander 37 P.D. 785, at para. 13.
52. H.C.J. 2056/04 Beit Sourik v. The Government of Israel, P.D., at para. 32. The ICJ, as stated above, decided that the route of the Barrier is not justified based on military necessities, and if that is the case then there is not doubt that the Military Commander does not have the authority to construct the Barrier. The ICJ's decision on this matter is unfortunately lacking sufficient factual basis and as such should be approached with caution.
53. H.C.J. 393/82 Jam'iyat Ascan v. The Military Commander, P.D.
54. On a side-note, an interesting fact is that before the acceptance of The Hague Regulations confiscation of private real estate was deemed legal. See Charles Magoon, The Law of the Civil Government in Territory Subject to Military Occupation by the Military Forces of the United States (Washington, Government Print, 2nd ed., 1902) 267.
55. H.C.J. 393/82 Jam'iyat Ascan, The Law of the Civil Government in Territory Subject to Military Occupation by the Military Forces of the United States, at para. 15, citing H.C.J. 202/81.
56. Benvenisti raises the point that the jurisprudence of the H.C.J, is to defer to the discretion of the military authorities whenever they invoke security considerations. See Benvenisti, The Law of the Civil Government in Territory Subject to Military Occupation by the Military Forces of the United States, at 120–122. It must be noted that the study was published in 1993 and therefore this conclusion does not consider the jurisprudence of the HCJ since that time.
57. H.C.J. 1890/03 Bethlehem Municipal Government v. State of Israel - Ministry of the Defense (not yet published).
58. Despite the fact that this barrier is eventually meant to connect to the Separation Barrier, the petition did not deal with the Separation Barrier as a whole. Rather, the discussion was limited to the construction of a barrier to protect access by Jews to a holy site within the West Bank. See H.C.J., at para. 7.
59. H.C.J., at para. 8.
60. H.C.J. See references to various H.C.J, decisions therein.
61. Director, Israel Foreign Ministry, General Law Dept.
62. BBC “Hard Talk” Interview, 5 Feb. 2004.
63. H.C.J. 2056/04 Beit Sourik v. The Government of Israel, Interview, at para. 32.
64. Israeli Ministry of Defense Web Page “Israel's Security Fence - Purpose”, http://www.seamzone.mod. gov.il/Pages/ENG/purpose.htm. Also see the page on “Operational Concept” and “Q & A”, where it states that “The Security Fence is being built with the sole purpose of saving the lives of the Israeli citizens who continue to be targeted by the terrorist campaign that began in 2000. The fact that over 800 men, women and children have been killed in horrific suicide bombings and other terror attacks clearly justifies the attempt to place a physical barrier in the path of terrorists.”
65. “Israel's Security Fence - Purpose”.
66. Israeli Ministry of Foreign Affairs, “The Reasons Behind the Fence: First Priority - Saving Lives”, http://securityfence.mfa.gov.il/mfm/web/main/document.asp?SubjectID=45219&MissionID=45187&LanguageID=0&StatusID=0&DocumentID=-1.
67. Eton Moreh case, “The Reasons Behind the Fence: First Priority - Saving Lives”.
68. H.C.J. 606/78 Beit El case, “The Reasons Behind the Fence: First Priority - Saving Lives”.
69. Legal Consequences case, “The Reasons Behind the Fence: First Priority - Saving Lives”, para. 120. The ICJ did not however deal with the issue of settlements relating to the authority of the Military Commander.
70. See, for example, H.C.J. 256/72 Hevrat Hashmai v. Minster of Defense 27(1) P.D. 124 where the Court stated that the settlers should be considered to be “local inhabitants” and as such the Military Commander is obligated to supply the settlers with their basic needs, including electricity.