Appropriation, Confiscation, Dispossession, and Settlements

In the beginning of May, the Israeli Government ordered a number of Palestinian families residing in Sheik Jarrah – a Palestinian majority neighborhood in East Jerusalem – to leave their homes after a High Court ruling that the Jewish families held a historic claim to the property in the area. In addition to this restriction

In the beginning of May, the Israeli Government ordered a number of Palestinian families residing in Sheik Jarrah – a Palestinian majority neighborhood in East Jerusalem – to leave their homes after a High Court ruling that the Jewish families held a historic claim to the property in the area. In addition to this restriction around holy sites for Muslims were placed during Ramadan. The Palestinians protested the forcible evacuations and restrictions leading to clashes with Israeli police forces, including the raid at the Al-Aqsa Mosque. Referencing to the same, Palestinian militant forces launched rockets at Israel to which Israel responded with indiscriminate proportionate use of force on Gaza.

According to Article 42 of the Hague Regulations 1907, “a territory is considered occupied when it is actually placed under the authority of the hostile army. The occupation extends only to the territory where such authority has been established and can be exercised.” The notion of occupation has been expanded by Article 2 common to the 1949 Geneva Conventions specifically in order to include occupation that encountered no armed resistance. The definition of occupation comprises of two distinct elements i.e. effective control over a territory, and establishment of authority.

In order to determine whether a State is in effective control of the territory of another State, it is necessary that that the armed forces of a foreign State are physically present within the territory of another State without the consent of the territorial State; the local government must be rendered completely or substantially incapable of exercising its power due to the presence of the hostile army; and the occupying State is in a position to exert authority over the territory in lieu of the local government.

The test to determine the existence of authority can be found in the Naletilić case. According to the ICTY “the occupying power must be in a position to substitute its own authority for that of the occupied authorities which must have been rendered incapable of functioning publicly; the enemy’s forces have surrendered, been defeated or withdrawn (in this respect, battle areas may not be considered as occupied territory and sporadic local resistance, even successful, does not affect the reality of occupation); the occupying power has a sufficient force present, or the capacity to send troops within a reasonable time to make the authority of the occupying power felt; a temporary administration has been established over the territory; the occupying power has issued and enforced directions to the civilian population” in order to establish authority over the occupied territory.

Occupied by Israel since June 1967, the West Bank – including East Jerusalem- and the Gaza Strip have come to constitute the Occupied Palestinian territory (OPT). The same has been reiterated by the International Court of Justice (ICJ) in its 2004 ruling on the Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory.

Military occupations are governed by International Humanitarian Law. The duties of the Occupying State and the rights of the Occupied Territories are set forth in the 1907 Hague Convention (IV) Respecting the Laws and Customs of War on Land and its Annex: Regulations Concerning the Laws and Customs on Land, the 1949 Geneva Convention Relative to the Protection of Civilian Person in Time of War, the 1977 Additional Protocol I applicable to International Armed Conflicts, and customary international humanitarian law. In addition to international humanitarian law, international human rights law also continues to apply during times of armed conflict. As such Israel remains bound by its international law obligations in the territory it occupies.

Since the occupation first began in June 1967, Israel’s ruthless policies of land confiscation, illegal settlement and dispossession, coupled with rampant discrimination, have systematically violated the human rights of Palestinians. Over the past 50 years or so, Israel’s policy of constructing and expanding illegal settlements on occupied Palestinian land has led to the demolition of tens of thousands of Palestinian properties, and displacement of large swathes of the Palestinian population. In lieu, Israel has taken to building homes and infrastructure in the occupied Palestinian territories to illegally settle its own population in the occupied territories. It has also diverted Palestinian natural resources such as water and agricultural land for settlement use. Under Israel’s laws, Jews are allowed to reclaim property lost in the 1948 war. However, the same law also prevents Palestinians (including Palestinian citizens of Israel) from recovering property lost in the same war.

The very existence of settlements in the Occupied Palestinian Territories violates international humanitarian law and is a war crime.

Article 49 of the Fourth Geneva Convention states that “the Occupying Power shall not deport or transfer parts of its own civilian population into the territory it occupies.” It also prohibits the “individual or mass forcible transfers, as well as deportations of protected persons from occupied territory”.

Furthermore, under the Hague Regulations of 1907, the public property of the occupied population (such as lands, forests, and agricultural estates) is subject to the laws of usufruct. This means that an occupying state is only allowed a very limited use of this property. This limitation is derived from the notion that occupation is temporary, the core idea of the law of occupation. In addition to this, the Hague Regulations also prohibit the confiscation of private property of the indigenous population of the occupied State. The Fourth Geneva Convention prohibits the destruction of private or state property, “except where such destruction is rendered absolutely necessary by military operations”.

Moreover, the unlawful appropriation of property by an occupying power amounts to “pillage”, which is prohibited by both the Hague Regulations and Fourth Geneva Convention and is a war crime under the Rome Statute of the International Criminal Court. Israel’s settlement policy also violates a special category of obligations entitled peremptory norms of international law i.e. jus cogens from which no derogation is permitted.

As the occupier, Israel is forbidden from using state land and natural resources for purposes other than military or security needs or for the benefit of the local population. Israel’s building of settlements in the West Bank, including in East Jerusalem, does not respect any of these rules and exceptions. The settlements and associated infrastructure are not temporary, they do not benefit Palestinians and do not serve the legitimate security needs of the occupying power. Moreover, the settlements are entirely dependent on the large-scale appropriation and/or destruction of Palestinian private and state property which are not militarily necessary. They are created with the sole purpose of permanently establishing Jewish Israelis on occupied land.

Due to the recent rise in the conflict between Israel and Palestine, the Supreme Court of Israel has delayed the decision on whether four Palestinian families in the city’s Sheikh Jarrah neighborhood will be evicted. The next date of the hearing is set for June 08, 2021 until then the planned evictions approved by lower courts will not go forward. While the decision of the Supreme Court of Israel may provide little relief, it is merely a delay and does little to prevent the wider expulsion of hundreds of other Palestinian families from their homes in occupied Palestinian territories.