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An Examination of the Authority of the Military Commander to Requisition Privately Owned Land for the Construction of the Separation Barrier

Published online by Cambridge University Press:  04 July 2014

Nir Keidar
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Abstract

This paper examines the authority of the Military Commander to requisition privately owned land for the construction of the Separation Barrier within the West Bank, which is held through a regime of belligerent occupation. The examination focuses on Article 52 of the Hague Regulations, which deals with the issue of requisitions in kind. Moreover, the relationship between Articles 23(g) and 52 of the Hague Regulations is discussed, in light of the ICJ's decision whereas Article 23(g) is irrelevant after the close of active hostilities. This paper argues that while Article 52 grants the Military Commander the authority for such requisitions, Israel must demonstrate in each specific case that there a specific duty of the army of occupation which gives rise to a specific need of the army of occupation, in accordance with Article 52. The relevant decisions of the International Court of Justice and the Israeli High Court of Justice (HCJ) are examined, especially the High Court of Justice's Beit Sourik judgments and the International Court of Justice's Legal Consequences case.

Type
Research Article
Information
Israel Law Review , Volume 38 , Issue 1-2: Special Double Issue: Domestic and International Judicial Review of the Construction of the Separation Barrier , Spring Winter 2005 , pp. 247 - 261
Copyright
Copyright © Cambridge University Press and The Faculty of Law, The Hebrew University of Jerusalem 2004

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Footnotes

*

Fourth Year LL.B. Student, Faculty of Law, The Hebrew University in Jerusalem. I would like to thank the Faculty of Law and the donors for granting me the Irving Isidore Prize for Independent Research which assisted me in conducting this research.

I would also like to thank Prof. Shimon Shetreet, Dr. Moshe Hirsch, Dr. Karin Calvo-Goller and Major Michael Ben-David for their help in the writing of this paper and for their useful notes and suggestions. Any mistakes are of course my own.

References

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. For a legal discussion of terrorism in the Israeli-Palestinian context, see Gross, Emanuel, “Democracy' 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 Ga. J. Int'l & Comp. L. 165 Google Scholar.

2 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.

3 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 Benvenisti, Eyal, The International Law of Occupation (Princeton, Princeton University Press, 1993) 108–116 Google Scholar; H.C.J. 606/78 Ayuv v. Minister of Defense P.D. 33(2) 113 (hereinafter: “Beit El case”); Legal Consequences of the Construction of a Wall in the Occupied Palestinians Territory, Advisory Opinion of 9 July 2004, I.C.J. 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 CrossRefGoogle Scholar para. 78 (hereinafter: “Legal Consequences Case”).

4 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.

5 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; Legality of the Use by a State of Nuclear Weapons in Armed Conflict, 1996 (I) I.C.J. 66, at para 75; Bothe, Michael et al. , eds. National Implementation of International Humanitarian Law (Dordrecht, Nijhoff, 1990) 31–33 Google Scholar; Ederington, Benjamin “Property as a Natural Institution: The Separation of Property from Sovereignty in International Law” 13 Am. U. Int'l L. Rev. 263, 234Google Scholar.

6 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 von Glahn, Gerhard, The Occupation of Enemy Territory… A Commentary on the Law and Practice of Belligerent Occupation (Minneapolis, Minneapolis University Press, 1957) 186 Google Scholar; Pictet, Jean, 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 Google Scholar; Jerusalem Center for Human Right, “The Separation Wall in the West Bank: Legal Analysis”, at page 6 Google Scholar, can be found in: http://www.hamoked.org.il/itemsc.asp?currentpage=3&section01_id=3&section02_id=8&sort=date%20desc. 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 Google Scholar [in Hebrew].

7 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 Google Scholar; Israeli Defense Force, ibid., at 29; see also H.C.J. 277/84 Tzabri Mahmu v. Appeals Commission 40(2) P.D. 57.

8 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”, supra n. 3. On the sanctity of private property in International Law in general, see Ederington, supra n. 5.

9 H.C.J. 10497/02 Hebron Municipal Government v. The Military Commander for the West Bank (not yet published), para. 8.

10 H.C.J. 2717/96 Wafa Ali v. Minister of Defense 50(2) P.D. 848, 852-853.

11 On the issue of the applicability of the Fourth Geneva Convention in the Occupied Palestinian Territories, see Ball, David John, “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 Google Scholar, claiming in detail that the Convention is in fact not applicable. For other opinions, see also Roberts, Adam, “Prolonged Military Occupation: The Israeli-Occupied Territory Since 1967” 84 Am. J. Int'l L 44 CrossRefGoogle Scholar; Imseis, Ardi, “On the Fourth Geneva Convention and the Occupied Palestinian Territory” 44 Harv. Int'l L.J. 65 Google Scholar; Legal Consequences Case, supra n. 3, at para. 91–101.

12 Also see The Manual of the Law of Armed Conflict, supra n. 7, at 299-300.

13 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, supra n. 3 at para. 124.

14 Legal Consequences Case, supra n. 3.

15 H.C.J. 2056/04 Beit Sourik Village Council v. Government of Israel 58(5) P.D. 807. 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 CrossRefGoogle Scholar.

16 Legal Consequences Case, supra n. 3, at para. 132.

17 Ibid, para. 137.

18 See Beit El case, supra n. 3.

19 The Manual of the Law of Armed Conflict, supra n. 7, at. 299-302; Feilchenfeld, Ernst H., The International Economic Law of Belligerent Occupation (Washington, Carnegie Endowment for International Peace, 1942) 37–38 Google Scholar; Schwarzenberger, Georg, International Law as Applied by International Courts and Tribunal (London, Stevens & Sons Limited, 1968) vol. 2 269 Google Scholar.

20 H.C.J. 606/78 Ayuv v Minister of Defense 33(2) P.D 113.

21 Schwarzenberger, supra n. 19.

22 Feilchenfeld, supra n. 19.

23 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.” Click, Amy, “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 Google Scholar.

24 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“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…”.

25 Dinstein, Yoram, The Laws of War (Tel Aviv, Shoken, 1983) 229, 234–235 Google Scholar [in Hebrew].

26 Gasser, Hans-Peter, “Protection of the Civilian Population” in Fleck, Dieter, ed. The Handbook of Humanitarian Law in Armed Conflict (Oxford, Oxford University Press, 1995) 555 Google Scholar.

27 On the scope of Article 43, see Benvenisti, supra n. 3, at ch. 2.

28 H.C.J. 390/79 Duikat v. Government of Israel 34 P.D. 1; see also Shamgar, Meir, 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 Google Scholar.

29 H.C.J. 2056/04 Beit Sourik v. The Government of Israel, supra n. 15, at para. 27.

30 Ibid.

31 H.C.J. 393/82 Jam'iyat Ascan v. The Military Commander 37 P.D. 785, at para. 13.

32 H.C.J. 2056/04 Beit Sourik v. The Government of Israel, supra n. 15, 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.

33 H.C.J. 393/82 Jam'iyat Ascan v. The Military Commander, supra n. 31.

34 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 Magoon, Charles, 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 Google Scholar.

35 H.C.J. 393/82 Jam'iyat Ascan, supra n. 31, at para. 15, citing H.C.J. 202/81.

36 It is important to note that the HCJ dealt in the Jam 'iyat Ascan with security concerns under Article 43 of the Hague Regulations, and did not directly discuss Article 52. However, the discussion is relevant due to the fact that the rational of the decisions is relevant to Article 52 as well and the fact that the HCJ in the Beit Sourik case brought the Jam 'iyat Ascan decision as a precedent to support its reasoning on the issue of authority.

37 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, supra n. 3, 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.

38 H.C.J. 1890/03 Bethlehem Municipal Government v. State of Israel – Ministry of the Defense (not yet published).

39 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 ibid, at para. 7.

40 Ibid, at para. 8.

41 Ibid. See references to various H.C.J. decisions therein.

42 Director, Israel Foreign Ministry, General Law Dept.

43 BBC “Hard Talk” Interview, 5 Feb. 2004.

44 H.C.J. 2056/04 Beit Sourik v. The Government of Israel, supra n. 15, at para. 32.

45 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.”

46 Ibid.

47 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.

48 It is possible that an examination of the question of Israel's right to self-defense in International Law will lead to a conclusion that Israel has the right to defend its citizens and that for this reason the construction is legal. These interests raised by the Israeli Ministry of Foreign Affairs and the Ministry of Defense are probably aimed more at this issue of self-defense then at the issue of authority of the Military Commander. However, Israel cannot invoke one interest for the issue of self-defense and another for the issue of authority.

49 Elon Moreh case, supra n. 28.

50 H.C.J. 606/78 Beit El case, supra n. 3.

51 Legal Consequences case, supra n. 3, para. 120. The ICJ did not however deal with the issue of settlements relating to the authority of the Military Commander.

52 See, for example, H.C.J. 256/72 Hevrat Hashmal 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.