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Summary
The present report
focuses upon military incursions into the Gaza Strip, the demolition
of houses, the violations of human rights and humanitarian law
arising from the construction of the Wall and the pervasiveness of
restrictions on freedom of movement.
In the past year, the
Israel Defence Forces (IDF) have carried out intensified military
incursions into the Gaza Strip. This has been interpreted as a show
of force on the part of Israel so that it cannot later be said that
it had withdrawn unilaterally from the territory in weakness. In the
course of these incursions, Israel has engaged in a massive and
wanton destruction of property. Bulldozers have destroyed homes in a
purposeless manner and have savagely dug up roads, including
electricity, sewage and water lines. In Operation Rainbow, from 18
to 24 May 2004, 43 persons were killed and a total of 167 buildings
were destroyed or rendered uninhabitable in Rafah. These buildings
housed 379 families (2,066 individuals). These demolitions occurred
during one of the worst months in Rafah’s recent history. During the
month of May, 298 buildings housing 710 families (3,800 individuals)
were demolished. In October the IDF carried out an assault on the
refugee camp of Jabaliya, in response to the killing of two Israeli
children in Sderot by Qassam rockets. One hundred and fourteen
persons were killed and 431 injured. Many of the victims were
civilians and 34 children were killed and 170 wounded. Ninety-one
homes were demolished and 101 seriously damaged, affecting 1,500
people. The demolition of houses in Rafah, Jabaliya and other parts
of Gaza probably qualify as war crimes in terms of the Geneva
Convention relative to the Protection of Civilian Persons in Time of
War (Fourth Geneva Convention).
Israel has announced
that it will withdraw unilaterally from Gaza. Israel intends to
portray this as the end of the military occupation of Gaza, with the
result that it will no longer be subject to the Fourth Geneva
Convention in respect of Gaza. In reality, however, Israel does not
plan to relinquish its grasp on the Gaza Strip. It plans to retain
ultimate control over Gaza by controlling its borders, territorial
sea and airspace. Consequently, it will in law remain an Occupying
Power still subject to obligations under the Fourth Geneva
Convention.
The Wall that Israel
is presently constructing within the Palestinian territory was held
to be contrary to international law by the International Court of
Justice in its advisory opinion of 9 July 2004. The Court held that
Israel is under an obligation to discontinue building the Wall and
to dismantle it forthwith. It dismissed a number of legal arguments
raised by Israel relating to the applicability of humanitarian law
and human rights law. In particular, it held that settlements are
unlawful. A week before the International Court of Justice rendered
its advisory opinion, the High Court of Israel gave a ruling on a
40-kilometre strip of the Wall in which it held that while Israel as
the Occupying Power had the right to construct the Wall to ensure
security, substantial sections of the Wall imposed undue hardships
on Palestinians and had to be rerouted.
Israel has not
complied with the advisory opinion of the International Court of
Justice. Instead, it has continued with the construction of the
Wall.
Israel claims that
the purpose of the Wall is to secure Israel from terrorist attacks
and that terrorist attacks inside Israel have dropped by over 80 per
cent as a result of the construction of the Wall. There is, however,
no compelling evidence that suicide bombers could not have been as
effectively prevented from entering Israel if the Wall had been
built along the Green Line (the accepted border between Israel and
Palestine) or within the Israeli side of the Green Line.
The following
are more convincing explanations for the construction of the Wall:
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The incorporation of settlers within Israel;
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The seizure of Palestinian land;
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The encouragement to Palestinians to leave their lands and homes
by making life intolerable for them.
The course of the
Wall indicates clearly that its purpose is to incorporate as many
settlers as possible into Israel. This is borne out by the fact that
some 80 per cent of settlers in the West Bank will be included on
the Israeli side of the Wall.
Despite the fact that
the International Court of Justice has unanimously held that
settlements are unlawful, settlement expansion has substantially
increased in the past year. This is prohibited by the International
Court of Justice and cannot be reconciled with the decision of the
Israeli High Court itself.
A further purpose of
the Wall is to expand Israel’s territory. Rich agricultural land and
water resources along the Green Line have been incorporated into
Israel. In recent months, Israel has manifested its territorial
ambitions in the Jerusalem area. The Wall is currently being built
around an expanded East Jerusalem to incorporate some 247,000
settlers in 12 settlements and some 249,000 Palestinians within the
boundaries of the Wall. It must be recalled that Israel’s 1980
annexation of East Jerusalem is unlawful and has been declared “of
no legal validity” by the Security Council in its resolution 476
(1980).
The construction of
the Wall in East Jerusalem makes no sense from a security
perspective because in many instances it will divide Palestinian
communities. Moreover, it will have serious implications for
Palestinians living in and near to East Jerusalem. First, it
threatens to deprive some 60,000 Palestinians with Jerusalem
residence rights of such rights if they happen to find themselves on
the West Bank side of the Wall. Secondly, it will make contact
between Palestinians and Palestinian institutions situated on
different sides of the Wall hazardous and complicated. Thirdly, it
will prohibit over 100,000 Palestinians in neighbourhoods in the
West Bank who depend on facilities in East Jerusalem, including
hospitals, universities, schools, employment and markets for
agricultural goods, from entering East Jerusalem.
A third purpose of
the Wall is to compel Palestinian residents living between the Wall
and the Green Line and adjacent to the Wall, but separated from
their land by the Wall, to leave their homes and start a new life
elsewhere in the West Bank, by making life intolerable for them.
Restrictions on freedom of movement in the “Closed Zone” between the
Wall and the Green Line and the separation of farmers from their
land will be principally responsible for E/CN.4/2005/29 page 4
forcing Palestinians to move. The Israeli High Court declared that
certain sections of the Wall should not be built where they caused
substantial hardship to Palestinians. Logically, this ruling is
applicable to sections of the Wall that have already been built.
However, the Government of Israel has indicated that it will not
honour its own High Court’s ruling in respect of the 200-kilometre
stretch of the Wall that has already been built.
Freedom of movement
is severely curtailed in the West Bank and Gaza. The inhabitants of
Gaza are effectively imprisoned by a combination of wall, fence and
sea. Moreover, within Gaza freedom of movement is severely
restricted by roadblocks that effectively divide the small
territory. The inhabitants of the West Bank are subjected to a
system of curfews and checkpoints that deny freedom of movement, and
they need permits to travel from one city to another. Permits are
arbitrarily withheld and seldom granted for private vehicles.
Several hundred military checkpoints control the lives of
Palestinians. Palestinians are denied access to many roads that are
reserved primarily for the use of settlers. The Wall in the
Jerusalem area threatens to become a nightmare, as tens of thousands
of Palestinians will be forced to cross at one checkpoint each day,
namely at Qalandiya. Finally, as already indicated, a permit system
governs the lives of residents between the Wall and the Green Line
and those adjacent to the Wall. This permit system is operated in an
arbitrary and capricious manner.
The restrictions on
freedom of movement imposed by the Israeli authorities on
Palestinians resemble the notorious “pass laws” of apartheid South
Africa. These pass laws were administered in a humiliating manner,
but uniformly. Israel’s laws governing freedom of movement are
likewise administered in a humiliating manner, but they are
characterized by arbitrariness and caprice.
In its advisory
opinion, which has been approved by the General Assembly, the
International Court of Justice indicated that there are consequences
of the Wall for States other than Israel. States are reminded of
their obligation not to recognize the illegal situation resulting
from the construction of the Wall and not to render aid or
assistance in maintaining the situation created by the construction
of the Wall. Israel’s defiance of international law poses a threat
not only to the international legal order but to the international
order itself. This is no time for appeasement on the part of the
international community.
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Source: UN
General Assembly
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