December 19, 2010

X. East Jerusalem

Background: Overview of Israeli Planning and Building Policies in East Jerusalem

Around 190,000 (40 percent) of the approximately 470,000 Israeli settlers in the occupied Palestinian territories live in East Jerusalem.[443] The Palestinian population of East Jerusalem is approximately 270,000. [444]

Under Jordanian rule from 1948 to 1967, the eastern part of Jerusalem comprised six square kilometers. When Israel seized the West Bank in the 1967 Middle East War, it unilaterally annexed an additional 65 square kilometers of land from the surrounding 28 Palestinian villages in the West Bank to the municipality of Jerusalem; it declared the entire annexed municipal area to be part of Israel.[445] Whereas Israeli military orders apply to the rest of the West Bank, Israel applies its own civil laws to East Jerusalem, which it considers to be part of the city of Jerusalem, Israel’s capital. Human Rights Watch is not aware that any other state recognizes Israel’s annexation of East Jerusalem or the surrounding areas of the West Bank, which remain occupied territory under international law.

Israel treats residents of Jerusalem differently depending on their citizenship and national origin. Under Israeli laws, Palestinian residents of East Jerusalem are neither Israeli citizens nor West Bank residents, but have residency permits allowing them to live in the city. Israel can revoke a resident’s permit (called an “ID”) if it determines that Jerusalem is not the ID-holder’s “center of life”, for example, if he or she works elsewhere in the West Bank, obtains a foreign passport or resides outside East Jerusalem for more than three years for purposes other than education. On this basis, Israel revoked the residency permits of some 4,500 East Jerusalemites in 2008 alone. Jewish settlers in East Jerusalem are exempt from such laws and may, for example, enter and exit Jerusalem while holding foreign passports in between travels abroad. Palestinians who carry PA identity cards and live in other parts of the West Bank need special permits to access East Jerusalem, much of which is separated from the West Bank by concrete segments of the separation barrier. These Palestinians may enter East Jerusalem through four established crossings in the wall. Israeli citizens, including Jewish settlers, may cross between the municipality and the rest of the West Bank through eight crossings, without permits.[446]

Israel regulates construction in East Jerusalem according to the 1965 Israeli Building and Planning Law. According to the law, the application of which Israel extended to East Jerusalem in 1967, a building permit issued by the Jerusalem Municipality is required for construction in Jerusalem.[447] In combination with other practices and policies, the law’s restrictions on construction strictly limit Palestinian construction in East Jerusalem while facilitating Jewish construction there.[448]

Israel has zoned far more territory in East Jerusalem for the construction of settlements and other uses than it has for Palestinian construction. Of the Jerusalem municipality’s 71 square kilometers, Israel has designated 35 percent for the construction of Israeli settlements; 30 percent of the area lacks a Local Planning Scheme, which is a prerequisite for granting building permits; and 22 percent has been zoned as a “green area” in which construction is prohibited. Only 13 percent, or 9.18 square kilometers, of zoned land is available for Palestinian construction.[449] Israeli authorities reject most Palestinian applications on the grounds that the requested permits were for buildings in areas that lacked approved Local Planning Schemes or were zoned as “green” rather than “residential.”[450]

The growth of the Palestinian population of Jerusalem requires 1,500 new housing units per year, yet in 2008 the municipality issued 125 building licenses for around 400 housing units.[451]

Inside the 13 percent of East Jerusalem in which Israel allows Palestinians to build their homes, construction has, in many cases, already reached or exceeded its legal limit, because of Israeli limitations on the density of construction and the maximum height of buildings. These limitations are themselves discriminatory: for example, whereas municipal regulations have allowed Jewish settlements in East Jerusalem to be built up to eight stories on small lots, the regulations have limited most Palestinian buildings to two floors.[452] The municipality has explained the limitations on Palestinian house size and height as necessary to preserve the character of the neighborhoods—but it has failed to enforce these regulations against settlement buildings in the heart of Palestinian neighborhoods that are many stories taller.

The 30 percent of East Jerusalem that lacks a Local Planning Scheme includes areas with thousands of Palestinian residents, whose homes are thus in danger of being demolished for lack of building permits. Palestinian neighborhoods that have no Local Planning Scheme include (but are not limited to) Al Bustan, Wallaje, Nu’eiman, and Wadi Hillwe.[453] Under the planning and building law that Israel applies to East Jerusalem, local planning authorities must prepare and submit to the district authorities a Local Planning Scheme for any neighborhood that lacks one.[454] In fact, Israeli planning authorities’ failure to abide by this provision has forced Palestinian residents of East Jerusalem to pay for and submit planning schemes on their own behalf.

It is extremely difficult for Palestinians to obtain Israeli approval of planning schemes for these areas, and thus to have any chance of obtaining building permits. In 2008, Israeli authorities rejected 172 proposed Local Planning Schemes submitted by Palestinians.[455] Human Rights Watch did not inquire into the stated reason for the rejection in each case, but the building law Israel applies to East Jerusalem contains numerous requirements that Palestinians may be unable to meet in most cases. The building law prohibits building in areas that lack adequate public infrastructure, and requires and specifies the planning and construction of, among others, roads, water and sanitation services, and public buildings such as schools and hospitals.[456] In practice, these requirements are virtually impossible to meet in many Palestinian areas of East Jerusalem.

The Jerusalem municipality has not directed adequate resources for the provision of such public services to East Jerusalem in the past. For example, according to Meir Margalit, a member of the Jerusalem municipal government, in 2003, 78.8 percent of the 608 public infrastructure plans implemented by the Jerusalem Municipal Planning Administration were located in West Jerusalem, as opposed to 21.2 percent in East Jerusalem.[457] According to B’Tselem, almost 90 percent of the municipality’s sewage pipes, roads, and sidewalks are located in West Jerusalem. Apparently, in East Jerusalem, where 65 percent of Palestinian families are impoverished (as compared to 30 percent of West Jerusalem families), residents cannot afford to pay for the infrastructure and services that the municipality has denied them.[458] Israeli planning and building laws therefore prevents the legal construction of homes in Palestinian neighborhoods in East Jerusalem on the basis that Israeli authorities have failed to provide those neighborhoods with adequate public infrastructure. [459]

Moreover, because Israeli development plans for East Jerusalem provide inadequate housing and building, rendering it impossible for Palestinians to build “legally” and leaving entire neighborhoods threatened with demolition, Palestinians have had to pay to develop and submit plans that would retroactively grant them housing rights. This is in contrast to communities in West Jerusalem and settlements in East Jerusalem, where plans include abundant housing and infrastructure. It is also unlike the unlicensed housing built in settler communities in East Jerusalem, against which municipal authorities have not enforced building codes.

Since 1967, by contrast, Israeli authorities have approved and supported the construction of approximately 60,000 residential units in settlements in occupied East Jerusalem.[460] In 2008, the number of tenders for settlement construction in East Jerusalem, which must be authorized by the municipality, increased by a factor of nearly 40 compared to 2007.[461] Since 2007, the Jerusalem Municipality and the Israeli Ministry of Housing have announced plans to construct roughly 10,000 housing units in East Jerusalem settlements for which planning has been approved or is in the approval process.[462] (Israeli authorities financially supported the construction of fewer than 600 homes for Palestinians in East Jerusalem, most recently in the early 1980s).[463]

In addition to the discriminatory restrictions on Palestinian life in East Jerusalem imposed by zoning and Israeli building laws, the Jerusalem municipality’s plans further restrict Palestinian construction there. The Jerusalem Master Plan provides overall guidance for the Israeli planning authorities’ approval of plans and permitting of construction in East Jerusalem. The current “master plan” is a combination of a number of plans that have been approved de jure or are applied de facto, including Jerusalem Master Plan 2030, which Mayor Nir Barkat submitted on May 5, 2009. This master plan, intended to define the scope of all development throughout Jerusalem until 2030, was drafted by a 31-member steering committee; only one committee member was Palestinian.[464] The planning authorities have rejected at least two Palestinian planning proposals on the grounds that they are inconsistent with provisions of the Jerusalem Master Plan 2030, even though this plan has not been formally approved and is not yet legally valid.

The plan continues a longstanding policy on the part of Israeli authorities to reduce or at least cap the Palestinian percentage of Jerusalem’s overall population, which dramatically increased as a result of Israel’s annexation of a large amount of the West Bank to the municipality in 1967.[465] An estimated 722,000 people live in Jerusalem (both East and West); the current demographic breakdown is 64 percent Jewish and 36 percent Palestinian.[466] Despite this, the Master Plan states that one of its objectives is to “maintain a ratio of 70 percent Jews and 30 percent Arabs” within Jerusalem.[467] According to one analysis, the plan will impose further discriminatory restrictions on Palestinian construction by requiring landowners to prove that the area in question has no environmental protections in place or “any archeological or Jewish religious significance.”[468]

Having made it impossible for many Palestinians to build “legal” houses, Israel has demolished a disproportionate number of Palestinian homes on the grounds that they violate building codes. From 1996 to 2000, more than 80 percent of recorded building violations were in West Jerusalem, but 80 percent of actual demolition orders issued by Israeli authorities were against buildings in Palestinian East Jerusalem.[469] Between 1999 and 2003, 157 Palestinian-owned buildings were demolished, while only 30 Israeli-owned buildings met the same fate.[470] According to the UN, Israeli authorities demolished 80 structures, displacing 300 people, in East Jerusalem in 2009.[471]

At the same time, Palestinians—who must scrupulously pay their municipal taxes in order to have proof that Jerusalem is their “center of life” and thereby avoid the cancellation of their residency permits—suffer from inadequate municipal services, lack of school classrooms, inadequate sewage services, unpaved roads, and poor or non-existent garbage collection.[472] Israel’s discriminatory limitation of the amount of land on which Palestinian construction is permitted has significant overcrowding and artificially pushed up rents. (This report does not address in detail other discriminatory aspects of Israel’s treatment of East Jerusalem Palestinians, notably the occasional application of the “Absentee Property Law” that allows Israel to confiscate property from any Palestinian owner who was not physically present in Jerusalem on the date Israel annexed the area in 1967).[473]

Al-Bustan and the City of David

Directly to the south of the walled Old City of Jerusalem – in close proximity to the Haram al-Sharif and Western Wall -- the Palestinian neighborhood of Silwan covers a sloping hillside leading down to a valley.

Israeli authorities have granted no permits to build homes in Al Bustan, an area in southern Silwan, since occupying East Jerusalem in 1967, and have demolished homes in the area. Residents of Al Bustan appear to be particularly at risk of further home demolitions and forced displacement because of a plan, developed and promoted by the municipality, that envisions turning Al Bustan into a tourist attraction. Human Rights Watch is unaware of any cases in which the Jerusalem municipality has threatened Jewish settlers with eviction due to plans to boost tourism. Current municipal plans call for the demolition of 22 buildings in Al Bustan, almost all of them residential homes, to make way for “a blossoming park that will flourish alongside a residential neighborhood, in which there will be restaurants, artists’ studios, souvenir and local-art shops and more.”[474]The Jerusalem municipality has issued demolition orders against 43 Palestinian homes in al-Bustan on the grounds that they were constructed without permits.[475]

Israeli authorities have argued that the new plan will address the issue of “massive illegal construction” by Al Bustan’s Palestinian residents. Israeli law prohibits issuing building permits for houses in an area without an approved town plan. Residents of Al Bustan have repeatedly hired planners and submitted their own neighborhood plans to the municipality. To date, the municipal authorities passed one plan through the initial stages of the approval process before rejecting it three years later, and have failed to consider a second plan, which Al Bustan residents are now attempting to redraft in order to negotiate an alternative to the municipality’s plan for the area.

Since 1991, Jewish settlers have created several settlements in Silwan, with assistance from municipal and national Israeli authorities. One settlement, located at the top of Silwan immediately to the south of the Old City, is called the City of David. The settlement, which houses 27 families in 10 buildings, includes homes that El Ad, a settler organization, obtained on the basis of fraudulent declarations, according to Israeli court rulings.[476] Israeli authorities have not carried out enforcement measures against settlers in these buildings. In addition to a settlement, the City of David is also a tourist site and an archaeological excavation, which the settlers are operating and funding through their company, El Ad.[477] The Jerusalem municipality has developed an overall plan for the Silwan area that links the City of David to the “King’s Garden Plan” for Al Bustan further down the hillside in order to develop tourism in the area.

A second settler group, Ateret Cohanim, constructed an illegal seven-story building called “Beit Yehonatan” near the Al Bustan neighborhood in southern Silwan. Although Israeli courts ordered final, immediate demolition orders against the building in 2007, these have not been carried out, and the Israeli government continues to pay the private security company that guards the building.

Discrimination in Silwan

Since 1967, the Jerusalem municipality has issued no construction permits for homes in Al Bustan, and in the larger Silwan neighborhood of which Al Bustan is a part, Israeli authorities have convicted hundreds of Palestinian residents for illegal construction, demolished scores of houses, and levied large fines.[478] Future plans for settlement construction also threaten Palestinian communities in Al Bustan as well as in the upper part of Silwan, known as Wadi Hilweh (the location of the “City of David” settlement and archaeological tourist site). At the same time, Israeli authorities have not enforced laws against unlawful settler takeovers or construction of buildings in these neighborhoods. Future plans developed by the municipality will benefit settlements in the area.

Municipal authorities have discriminated in favor of settlers in Silwan. In some cases, Israeli authorities have failed to uphold the law against settlers who took over Palestinian property in the area. In one case, according to a report by investigative journalist Meron Rapoport, settlers from the El Ad group—which established the “City of David” settlement--continue to occupy a home belonging to the Abbasi family, which they broke into in 1991, despite a judicial ruling that it has been proven beyond doubt that both the declaration of the entire property as absentee property and its [subsequent] sale [for development as a settlement] … are both unacceptable because they were done in an extreme lack of good faith and there is no factual or legal basis to legalize them.[479]A second example is the illegal seven-story building known as Beit Yehonatan, which the settler group Ateret Cohanim built in 2002 without a permit on a plot of 800-square meters in another part of Silwan close to the Al Bustan area.[480]

The current master plan that applies to the area permits buildings that are a maximum of two stories high. A final court order directing that the building be sealed and vacated has been in effect since January 2007. The municipality stated that the building was to be demolished immediately in a document published in October 2009.[481] Municipal authorities have taken no further action against the building; and Israeli authorities continue to pay the salaries of the private security company that guards the settlement.[482] Al Bustan residents told Human Rights Watch in February 2010 that eight settler families lived in the building.[483]

In other cases, Israeli authorities have applied planning and building laws in discriminatory ways. The Jerusalem Municipality’s licensing authority allowed the settler group that operates the City of David “to carry out a 127 m² “sanitary expansion” in a building whose existing area is 188 m²,” according to journalist Rapoport, even though according to applicable plans “the entire area is defined as a “special open area” where all construction is prohibited.” The same planning authorities “rejected a request by a Palestinian neighbor for a 23 m² “sanitary expansion of a 249 m² building,” on the grounds that applicable plans prohibited the expansion request.[484] In another case, a judge threw out a demolition order issued by municipal authorities against illegal renovations of a Palestinian building, on the grounds that those authorities had only ordered El Ad settlers to “stop work” on a neighboring building, which they had illegally expanded by 345-square meters without a permit: “the difference in the procedures applied by the [municipality] towards the two [buildings] is discordant and insufferable to such an extent that the court can no longer disregard it”.[485]

Residents of Al Bustan told Human Rights Watch that their attempts to prove ownership of their homes had been unsuccessful and that municipal authorities had previously carried out several demolitions. An Al Bustan resident, Sheikh Musa, told Human Rights Watch that the first home demolition in Al Bustan occurred on May 11, 2008, accompanied by arrests.[486] Fakri Abu Diab, a representative of the neighborhood, said,

Our problems really began in 2005. To this point they’ve demolished six of the 88 houses here, but they say they all of them are illegal. My home is in the area where the other demolitions have taken place, and I’m anxious that I’ll be next. I have paid “arnona” [a municipal property tax] ever since I built my house in the 1990s, and they only told me in 2009 that it is illegal and should be destroyed. Another man in the neighborhood was arrested a month ago. They want to demolish his house, but he only moved into it after settlers turned his old house into part of the City of David up the hill.[487]

Israeli authorities have also repeatedly announced plans to destroy the majority of Palestinian homes in Al Bustan and transform the area into a tourist park. In 2004, international pressure halted the Jerusalem city building inspection department’s announced plans to demolish 88 houses in the neighborhood; the municipality then began negotiations with residents of Al Bustan to prepare a town plan scheme that would legalize Palestinian construction there.[488]The residents submitted Town Plan Scheme 11641 in 2005; three years later, the Regional Planning and Construction Committee announced that the plan met its threshold requirements. Nonetheless, in November 2008, city bulldozers, accompanied by police, demolished the home of the Siyam family. Al Bustan residents rejected a subsequent offer from the municipality to evacuate voluntarily to another part of East Jerusalem.[489] The Jerusalem municipality announced again on March 7, 2009, that it intended to demolish illegal homes in the al-Bustan neighborhood, saying that there were effective demolition orders against three houses and legal proceedings under way against another 57 buildings.[490]

The Jerusalem municipality’s stated basis for threatening the area with demolitions is that most buildings in Al Bustan were built without construction permits. Israeli authorities have not prepared plans that would allow Palestinian building in the area, and have repeatedly refused to accept plans prepared by Palestinian residents that would do so. In February 2009, the Israeli Regional Planning Committee ultimately rejected the plan, mentioned above, that Al Bustan residents presented in 2005, on the basis that the city intended to designate the area as a “green zone.”[491] The planning authorities rejected a second plan residents submitted by planner Yusef Jabareen later in 2009, which is currently being revised as the residents hope to achieve a negotiated agreement.[492]

Instead, Israeli authorities have developed plans that would transform Al Bustan into a tourist attraction, linking it to the archaeological site being excavated and operated in Wadi Hilweh / the City of David by the settler group El Ad.

In late 2007, the Jerusalem municipality deposited Town Plan Scheme 11555 with the local building and planning committee, the first step in the process of the plan’s final approval.[493] Plan 11555 covers 548 dunams in Silwan, including eastern Wadi Hilweh (the “City of David”) and most of Al Bustan. Plan 11555, developed by the municipality and planned by the office of architect Moshe Safdie, intends to transform these two areas of the Palestinian residential neighborhood of Silwan into an Israeli archaeological park, and requires the expropriation of land and the demolition of 88 homes in Al Bustan, evicting approximately one thousand residents. Plan 11555 designates the area – referred to as “area cell 309” – as areas for roads, parking lots, paths, a promenade, open areas, a special public area, public buildings and institutions, engineering installations and housing.[494] The plan would include a tunnel leading from Al Bustan, at the bottom of Silwan, underneath the neighborhood’s remaining homes, up to the City of David and exiting near the Western Wall inside the Old City. The settler group El Ad’s excavations of ancient tunnels in the upper part of Silwan have already undermined and damaged Palestinian homes and to roads and parking lots in the area.

Almost a year later, on January 10, 2010, Jerusalem Mayor Nir Barkat presented to a Knesset hearing a new municipal policy devised to “systematically address the illegal construction in Jerusalem.” The plan chose, as “test cases” for implementing the new policy, the Al Bustan neighborhood (referred to as “King Solomon’s Gardens” in the plan) and the nearby area where an illegal settler building known as Beit Yehonatan is located.[495]

On March 2, 2010, the Jerusalem municipality officially launched the “King’s Garden Plan,” which would radically change Al Bustan. According to the municipality’s publicity brochure, the plan “even uses part of the area of the ancient garden in order to create an environment of coexistence between the residents and the natural and historical assets alongside,” by allowing 21 or 22 Palestinian buildings to remain in Al Bustan, and only demolishing the “88 structures inside the [planned] garden area, all of which were built without building permits on an area that had been preserved as a garden [for] thousands of years.”[496] The plan promises to build a “large-scale community center” for the “benefit of the residents” of Silwan. (Human Rights Watch interviewed several residents of Al Bustan inside a large tent that they said was a community center with a demolition order pending against it for being constructed without a permit).[497]

Town Plan Scheme 11555 approves intensive construction for the settlement in the upper part of the “City of David,” even though this is the area where most of the site’s archaeological findings are concentrated. By contrast the building density under the plan for the Palestinian areas further down the hill, where the concentration of archaeological findings is significantly thinner, is lower.[498] The Jerusalem municipality’s other plans for Al Bustan and the rest of Silwan include expropriating privately-owned Palestinian property to build parking lots for tourists expected to come to the City of David; a court order halted the expropriation, announced in March 2008, after Israeli NGOs petitioned against it.[499]

Israel’s application of its own planning laws in ways that privilege Jewish settlers and severely hinder Palestinian development violates its obligation, as the occupying power in East Jerusalem, to refrain from changing local legislation, and the prohibition against discriminatory treatment of people under its control based solely on their citizenship or national origin.

Coda: Increasing Harassment

Residents of Al Bustan told Human Rights Watch in February and April that they had little contact with settlers in the area, but that police authorities had recently begun to harass them, both by threatening them not to participate in a planned demonstration against the municipality’s plans to demolish their homes, and by repeatedly arresting children from the neighborhood and detaining them without charge. By October, clashes with settlers and settler security guards had become more frequent.

According to one resident, Sheikh Musa, police summoned six members of the Al Bustan resident’s committee, which had planned a march through the neighborhood, to a police station in West Jerusalem, and threatened “to arrest us if we went on the march and told us to promise not to.” The committee spokesman, Fakri Abu Diab, interviewed separately, said, “they came to the homes of the residents’ committee, and summoned us, so we went. They told us they had orders to arrest us for 48 hours and that we had to sign a paper saying we would not join the march. So we signed it, otherwise we’d go to jail. But we had the march anyway.”

Both men told Human Rights Watch that police had recently begun what appeared to be a campaign, leading to the arrest of “dozens” of children from the neighborhood on suspicion of throwing stones. The Israeli human rights organization B’Tselem documented cases of police arrests of children as young as 12 years old from the area in February, 2010, in which police beat and threatened the children and denied them access to their parents or lawyers during interrogations, in contravention of Israeli law regarding the treatment of children in custody.[500]

Human Rights Watch spoke to three children between ages 12 and 14, who had been detained by police during raids on their homes from between 2 a.m. and 4 a.m., allegedly for having thrown rocks at the Jewish settlement known as “Beit Yehonatan” in the area.[501] In each case, the children said that police had taken them to the “Moskobiyya” police station in West Jerusalem, verbally insulted them, and ordered them to sign confessions written in Hebrew without explaining the statement or allowing a parent, guardian or lawyer to be present during their interrogation. One 14-year-old boy said he was punched so hard during interrogation that he threw up.[502] One child, a 12-year-old, said he had been detained three times in the past three months, for as long as four days. Another child told Human Rights Watch that after police came to his home at 4 a.m., detained him, handcuffed and blindfolded him and put him in a jeep. He said he was driven around for roughly one hour as the jeep picked up another child in the neighborhood of Al-Thuri, and then went to the police station, where he was physically abused and coerced into signing more than 20 documents written in Hebrew, which he could not read.[503]

The boy’s father said he had to pay 4000 shekels (US$850) to pay his bail and lawyers’ fees.[504] Other residents said they faced similar unsustainable costs associated with the detention of their children, and that they felt they would be unable to continue to live in Al Bustan if faced with continued harassment and costs. “I had to pay 2000 shekels (US$425) to get my son out of jail. He’s now under house arrest, and my house has a demolition order against it,” said Zeyad Zedane.[505]

In September, a settlement security guard reportedly killed a Palestinian after driving through Silwan late at night and having rocks thrown at his vehicle.[506] In October, the head of El-Ad, David Be’eri, ran over a Palestinian child who was standing in the road and threatening to throw rocks at his car.[507] The child was hospitalized before being put under house arrest.

Discrimination and Forcible Transfer in International Law

International law has long established the basic principles of non-discrimination and equality.[508] Discrimination is where laws, policies or practices treat persons in similar situations differently due to, among other criteria, race, ethnic background or religion, without adequate justification. States are obliged not to take any step that “has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of human rights and fundamental freedoms” based on race, color, descent, or national or ethnic origin.[509] The prohibition against racial discrimination is considered one of the most basic in international human rights law – the ICCPR states specifically that even in times of public emergencies, measures taken by states to derogate from other rights obligations must not “involve discrimination solely on the grounds of race … or religion” a fundamental obligation that states owe not only to their own citizens but to one another; any agreement to discriminate into which states may enter is invalid.[510]

The prohibition against discrimination is codified in the major human rights treaties that Israel has ratified, including the International Covenant on Civil and Political Rights (ICCPR), the International Covenant on Economic, Social and Cultural Rights, the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD), and the Children’s Rights Convention (CRC).

Israel’s human rights obligations—including the prohibition against discrimination—extend to all persons under its jurisdiction, including residents of the occupied West Bank, which is under effective Israeli control.[511] Successive Israeli governments have argued that the PA rather than Israel is responsible for the human rights of Palestinians in the West Bank.[512] In fact, both parties bear responsibilities to the extent that their actions (or failures to act) affect residents of the territory. Under the laws of occupation, Israel is ultimately responsible for the well being of the Palestinian population. As discussed in this report, Israel has particular and immediate responsibilities regarding the welfare of Palestinians living in areas over which it claims full and exclusive authority, including “Area C” of the West Bank and East Jerusalem.

Palestinian residents of the occupied West Bank—including most residents of East Jerusalem—are not Israeli citizens. While it is possible that Israeli authorities could lawfully treat Israelis and Palestinian residents of West Bank differently on the basis of their citizenship in the narrow circumstances described below, discrimination against non-citizens for reasons of their ethnicity, religion or national origin alone is not justifiable. Rules and laws applied in occupied territories that distinguish between citizens and non-citizens to the detriment of non-citizens, without any reasonable justification, are unlawful and discriminatory. According to the Committee for the Elimination for Racial Discrimination (the body responsible for interpreting and applying the convention of the same name),

… differential treatment based on citizenship or immigration status will constitute discrimination if the criteria for such differentiation, judged in the light of the objectives and purposes of the Convention, are not applied pursuant to a legitimate aim, and are not proportional to the achievement of this aim.[513]

The classic justifiable differential treatment for citizens is in political rights (e.g. the right to vote). It is difficult to see how any difference in treatment between Israeli citizens and non-Israeli citizens in occupied territory, that privileges the former, could be justified, especially if those citizens have been transferred into the territory in violation of international humanitarian law. Therefore in principle any differential treatment in the occupied Palestinian territories based on citizenship will be unjustifiable discrimination.

In 2007 the CERD Committee rejected Israel’s position “that the Convention does not apply in the Occupied Palestinian Territories and the Golan Heights,” expressed its concern at Israel’s “assertion that it can legitimately distinguish between Israelis and Palestinians in the Occupied Palestinian Territories on the basis of citizenship,” and recommended that Israel “ensures that Palestinians enjoy full rights under the Convention without discrimination based on citizenship and national origin.”[514]

In its General Recommendation No. 30, the CERD Committee recommended that states, inter alia:

Ensure that non-citizens enjoy equal protection and recognition before the law and in this context, to take action against racially motivated violence and to ensure the access of victims to effective legal remedies and the right to seek just and adequate reparation for any damage suffered as a result of such violence;
Remove obstacles that prevent the enjoyment of economic, social and cultural rights by non-citizens, notably in the areas of education, housing, employment and health; [and]
Ensure that States parties respect the right of non-citizens to an adequate standard of physical and mental health by, inter alia, refraining from denying or limiting their access to preventive, curative and palliative health services.[515]

In July 2010, the Committee of the ICCPR considered Israel’s human rights record and concluded in a number of areas that its policies in the West Bank discriminated against Palestinian residents.

The committee criticized Israel’s “frequent administrative demolition of property, homes, as well as schools in the West Bank and East Jerusalem due to the absence of construction permits, their issuance being frequently denied to Palestinians”. It also noted that Israel imposed “discriminatory municipal planning systems, in particular in “area C” of the West Bank, as well as East Jerusalem, disproportionately favoring the Jewish population of these areas.”[516] These policies amount to violations of the right to non-discrimination, to privacy and a home, and to a family life.

The committee found that Israel’s allocation of water resources in the West Bank led to water shortages affecting “disproportionately the Palestinian population … due to prevention of construction and maintenance of water and sanitation infrastructure, as well as the prohibition of construction of wells,” and called on Israel to “ensure that all residents of the West Bank have equal access to water,” to “allow the construction of water and sanitation infrastructure, as well as wells,” and to “address the issue of sewage and waste water in the occupied territories emanating from Israel.”[517]

With regards to freedom of movement, the committee criticized the restrictions Israel imposed on Palestinians (but not settlers), in particular Palestinians living in the “seam zone” between the separation barrier and Israel, “the frequent denial of agricultural permits to access the land on the other side of the wall or to visit relatives, as well as irregular opening hours of the agricultural gates.” Israel’s policies and the physical obstacle of the separation barrier violate Palestinians’ rights to freedom of movement, which may be limited only for such reasons as national security and public order. As noted, while Israel contends that the separation barrier was built to prevent terrorist attacks against Israelis, 85 percent of the barrier is being built inside the West Bank, and its route places some 60 settlements on the “Israeli side” of the barrier. The committee noted its concern that “the settler population continues to increase,” in violation of the Palestinian people’s right to self-determination.[518] The International Court of Justice ruled in an advisory opinion in 2004 that the route of the sections of the barrier that fall inside the occupied West Bank violate international law.[519]

The Israeli authorities’ ongoing home demolitions prevent residents of the West Bank from enjoying the right to adequate housing. In its General Comment 4, the Committee on Economic, Social and Cultural Rights, which monitors the compliance of states parties to the ICESCR, held that "the right to housing should not be interpreted in a narrow or restrictive sense which equates it with, for example, the shelter provided by merely having a roof over one's head or views shelter exclusively as a commodity. Rather it should be seen as the right to live somewhere in security, peace and dignity."[520]

Israel’s settlement policy as a violation of the laws of occupation has been exhaustively discussed. The fourth Geneva Convention prohibits the transfer of the civilian population into occupied territory.[521] As regards government property (including “state lands”), article 55 of the Hague Regulations, considered to be customary law, stipulates that “the occupying State shall be regarded only as administrator and usufructuary” of such property in the occupied territory.[522] The use of government property allowed the occupying power is subject to its obligation "to restore, and ensure, as far as possible, public order and safety."[523] Israel is thus obligated to act, where its security needs do not prevent it, for the welfare of the local population. The use of "state lands" would be legitimate only where it is done in conformity with international law and benefits the Palestinians in the Occupied Territories. "Underlying all the limitations," a noted commentator writes, "is the idea that the occupying power is not the sovereign in the territory."[524] Consequently, the occupying power may not do any act that constitutes "unilateral annexation of all or part of the occupied territory."[525]

Forcible Transfer

The cumulative impact of Israel’s restrictions on Palestinian life in Area C of the West Bank affect Palestinian residents of Areas A and B, as defined under the Interim Agreements of 1995, but particularly affect residents of Area C. In several cases documented in this report, and also as documented in numerous media and NGO reports, these policies have made life so difficult for Palestinian residents of Area C that they have had to abandon their homes and livelihoods and relocate, usually to towns or cities under the administrative and civil control of the PA. Israel’s demolitions of hundreds of Palestinians homes and other structures in East Jerusalem, which Israel annexed in 1967, have also forcibly displaced thousands of Palestinians there, although it is not known how many were permanently displaced.

The Fourth Geneva Convention permits the occupying power temporarily to “evacuate a given area if the security of the population or imperative military reasons so demand,” while requiring that power to ensure, “to the greatest practicable extent, that proper accommodation is provided” and that evacuated persons are returned to their homes as soon as possible after “hostilities in the area in question have ceased.”[526] In cases documented in this report, Israel has not contended that evictions were temporary or necessitated by hostilities in the area. The forced displacement documented in this report further breached Israel’s obligation pursuant to this article to ensure the proper accommodation of the evacuees and that they be removed in satisfactory conditions of hygiene, health, safety and nutrition. The laws of war also prohibit the confiscation and destruction of private property.[527]

The Geneva Conventions and customary international law prohibit the intentional mass forcible transfer of civilians within an occupied territory as a grave breach of the laws of war.[528] According to the International Criminal Tribunal for the Former Yugoslavia (ICTY), “Forcible transfer is the movement of individuals under duress from where they reside to a place that is not of their choosing.”[529] The elements of the crime include “the occurrence of an act or omission, not motivated by the security of the population or imperative military reasons, leading to the transfer of a person from occupied territory or within occupied territory,” as well as “the intent of the perpetrator to transfer a person,” meaning that his “aim” is to ensure “that the person is not returning.”[530]

The prohibition of forcible transfer extends beyond cases where a military force directly and physically relocates a population under its control, to cases where the military force renders life so difficult for the population that they are essentially forced to leave.[531] For example, Article 8(2)(b)(viii) of the Rome Statute of the International Criminal Court states that the war crime of forcible transfer can occur “directly or indirectly.” The ICTY Appeals Chamber has held that “forcible transfer” is “not to be limited to [cases of the use of] physical force” but that “factors other than force itself may render an act involuntary, such as taking advantage of coercive circumstances.”[532] The ICTY’s Krajišnik judgment found that Serb municipal authorities and armed forces were responsible for forcible transfer when they “created severe living conditions for Muslims and Croats” –through house searches, arrests and physical harassment, as well as cutting off water, electricity and telephone services—“which aimed, and succeeded, in making it practically impossible for most of them to remain.”[533]

[443]EU Heads of Mission Report on East Jerusalem, December 15, 2008, p. 2.

[444] Jerusalem Institute of Israel Studies, 2009/10, “Table 3/1, Population of Israel and Jerusalem, By population group, 1922-2008.”

[445]As a result of the annexation, the territory of the Jerusalem Municipality almost tripled in size from 38 to 108 square kilometers. Bimkom and Ir Amim, “Making Bricks Without Straw: The Jerusalem Municipality’s New Planning Policy for East Jerusalem,” January 2010.

[446] According to statistics of Israel’s Ministry of Interior, between 1967 and 2006 more than 8,200 Palestinians had their Jerusalem ID’s revoked. World Bank, Movement and Access Restrictions in the West Bank: Uncertainty and Inefficiency in the Palestinian Economy, May 9, 2007, pp. 10-11,

http://siteresources.worldbank.org/INTWESTBANKGAZA/Resources/WestBankrestrictions9Mayfinal.pdf (accessed June 10, 2010).

[447]Planning and Building Law, July 14, 1965, Paragraph 145. At the time Israel occupied East Jerusalem in June 1967, the law in force in the area regarding building and planning was the Jordanian Law of Cities, villages and Buildings No. 79 of 1966. Under the law of occupation, Israel is obligated to act according to this law, except as necessary to maintain order or for the benefit of the occupied population. Israel’s extension of the Israeli Planning and Building Law of 1965 to East Jerusalem exceeds its authority an occupier. The law also violates the Fourth Geneva Convention’s prohibition against an occupier transferring its civilian population into occupied territory, insofar as it regulates Israeli as well as Palestinian construction within occupied East Jerusalem.

[448] Building and Planning Law, July 14, 1965, chapter 5.

[449]OCHA, The Planning Crisis in East Jerusalem, OCHA Special Focus, April 2009, p. 8.

[450] “After US pressure, Barkat to halt 70% of Occupied East Jerusalem house demolitions,”Haaretz, June 29, 2009.

[451]Ir Amim, “A Layman’s Guide to Home Demolitions,” March 2009, pp. 4-5.

[452]B’Tselem, A Policy of Discrimination: Land Expropriation, Planning and Building in East Jerusalem, May 1995, p. 82.

[453]Civic Coalition for Defending Palestinians’ Rights in Jerusalem, Aggressive Urbanism: Urban Planning and the Displacement of Palestinians within and from Occupied East Jerusalem, December 2009.

[454]Planning and Building Law, July 14, 1965, Para. 62(a).

[455]Ir amim, State of Affairs – Jerusalem 2008, December 2008, p. 31, and “After US pressure, Barkat to halt 70% of Occupied East Jerusalem house demolitions,”Haaretz, June 29, 2009, http://www.haaretz.com/hasen/spages/1096333.html (accessed July 15, 2010).

[456]Planning and Building Law, July 14, 1965, Para. 63.

[457] Meir Margalit, Discrimination in the Heart of the Holy City, International Peace and Cooperation Centre, Jerusalem, 2006, pp. 29, 127.

[458]ACRI, Human Rights in East Jerusalem: Facts and Figures, May 2010, p. 42, http://www.acri.org.il/pdf/eastjer2010.pdf (accessed October 20, 2010).

[459] Even if Palestinian applicants for building permits meet all the above criteria, they may face difficulties meeting the Israeli criteria required to prove their ownership of the land on which they wish to build. (For a discussion of these criteria, see Meir Margalit, No Place Like Home; House Demolitions in East Jerusalem, Israeli Committee against House Demolitions, 2007, p. 20.) Palestinian families in East Jerusalem who acquired their land through traditional family inheritance, or through the Jordanian Table of Rights in the name of a third party, probably do not possess what the Jerusalem Municipality accepts as ‘official documents’ to prove land ownership. “In such cases, the Jerusalem Municipality requires the physical presence of both the new and previous owner to transfer entitlement at the Ministry of Justice in Jerusalem, criteria that have consistently proved impossible to fulfill.” As well, applicants must list all heirs to a piece of land on the permit application. “If a joint heir lives outside of the municipal boundaries of Jerusalem, the Custodian of Absentee Property can expropriate the land to the State of Israel. For this reason, many Palestinian families in occupied East Jerusalem are extremely hesitant to register their land with the Israeli Land Registration Bureau for the well-founded fear that they will be told they hold no legal entitlement to it.” (Civic Coalition for Defending Palestinians’ Rights in Jerusalem, Aggressive Urbanism: Urban Planning and the Displacement of Palestinians within and from Occupied East Jerusalem, December 2009, p. 14.)

[460]Statistics from the Jerusalem Land Research Centre, http://www.lrcj.org/Eng/site.php (accessed July 15, 2010).

[461] EU Heads of Mission Report on East Jerusalem, December 15, 2008, p. 2, copy on file with Human Rights Watch.

[462]Ir Amin Monitoring Report, “Negotiations Towards an Accord on Jerusalem: Declarations vs. Actions,” April 2008, p. 4.

[463]Ir Amim, “State of Affairs – Jerusalem 2008,” December 2008, p. 30. The homes were in the Nusseibah Housing Project in Beit Hanina, according to Rabbis for Human Rights, “Home Demolitions in East Jerusalem,” http://www.rhr-na.org/homedemolitions/questions.html (accessed October 20, 2010).

[464] Civic Coalition, Aggressive Urbanism, p. 25.

[465]In 1972, an Inter-ministerial Committee known as the “Gafni Commission” determined that the “demographic balance of Jews and Arabs must be maintained at what it was at the end of 1972”: 73.5 percent Jews and 26.5 percent Arabs. B’Tselem, A Policy of Discrimination: Land Expropriation, Planning and Building in East Jerusalem, May 1995, p. 45.

[466] Table III/4 - Population and Population Growth in Jerusalem, Statistical Yearbook 2008. Of the city’s 426,000 Jewish residents, as noted, approximately 190,000 live in settlements.

[467]Report No.4, Local Outline Plan Jerusalem 2000, Proposed Plan and the Main Planning Polices, Planning Administration, City Engineer, City Planning Department, Jerusalem Municipality, 2000. Hereinafter, The Jerusalem Master Plan.

[468]Suad Makhak, The Israeli Master Plan for Jerusalem 2030, The Civic Coalition for Defending Palestinian Rights in Jerusalem, September 2009, p. 45.

[469]From 1996-2000 there were 17,382 recorded building violations and 86 demolition orders in West Jerusalem, and 3,846 building violations and 348 demolition orders in East Jerusalem. World Bank, Movement and Access Restrictions in the West Bank, p. 11, citing B’Tselem, “Statistics on Demolition of Houses built without Permits in East Jerusalem.”

[470]World Bank, Id., pp. 10-11.

[471] Information according to OCHA, on file with Human Rights Watch.

[472] Human Rights Watch interview with Attorney Sami Ersheid, Jerusalem, April 12, 2010.

[473] See Ir Amim, “Absentees against Their Will – Property Expropriation in East Jerusalem under the Absentee Property Law,” July 2010, http://www.ir-amim.org.il/Eng/_Uploads/dbsAttachedFiles/Absenteesagainsttheirwill.pdf (accessed July 24, 2010).

[474]Jerusalem Municipality, “Launch of the King’s Garden Plan, 2.3.2010,” on file with Human Rights Watch.

[475]Bimkom and Ir Amim, “Making Bricks Without Straw: The Jerusalem Municipality’s New Planning Policy for East Jerusalem,” January 2010.

[476]Meron Rapoport, Shady Dealings in Silwan, Ir Amim, pp. 12-13.

[477]This report does not discuss the failure of Israeli authorities to monitor excavations conducted by El Ad and to require it to compensate Palestinian residents’ whose property has been damaged by these excavations. Excavations at the “City of David” site are nominally conducted by the Israeli Antiquities Authority, an Israeli government agency, with financial support from El Ad; however, El Ad has itself carried out excavations on several occasions, and excavations have violated Israeli regulations. One excavation led to the disposal rather than preservation of skeletons from a Muslim cemetery from the 8th or 9th century discovered at the site; the find was not reported to the Ministry of Religious Affairs as required. In January 2008, residents of the Palestinian neighborhood of Wadi Hilweh discovered that the Israel Antiquities Authority’s excavation, begun in 2007, went under their homes and lands. “The Israel Antiquities Authority refused to provide details about the excavation, or to allow the residents to examine it. Seven local residents filed a petition to the High Court of Justice to stop the work. The day after the petition was submitted, the police arrested five of the petitioners on suspicion of ‘damaging the City of David visitor center.’ They were released the next day; no charges have been brought against them.” For a detailed description of El Ad’s running of the site, see Meron Rapoport, Shady Dealings in Silwan, Ir Amim, pp. 23.

[478] Meron Rapoport, Shady Dealings in Silwan, Ir Amim, May 2009, p. 10.

[479]Rapoport, p. 32, citing “Legacy of the late Ahmad Hussein Musa al-Abbasi et al v. the Jerusalem Development Authority et al,” civil file 895/91. The El Ad settler group established several settler buildings in the City of David on the basis of the “Absentee Property Law,” which Israel applied to East Jerusalem from 1977 to 1992, and again from 2004 to 2005. According to the law, Israeli authorities could seize and transfer to settlement organizations any property belonging to a Palestinian East Jerusalemite who was not present in East Jerusalem at the time it was occupied in 1967.

[480]See Meir Margalit, Seizing Control of Space in East Jerusalem, 2009, p. 62.

[481] Bimkom and Ir Amim, “Making Bricks Without Straw: The Jerusalem Municipality’s New Planning Policy for East Jerusalem,” January 2010.

[482]The settlement is guarded by Modiin Ezrahi company for 20 million New Israeli Shekels a year (as of 2005), funded by the Housing Ministry. Rapoport, p. 10 and appendix.

[483] Human Rights Watch interview with Fakri Abu Diab, Silwan, February 19, 2010.

[484]Rapoport, Shady Dealings in Silwan, Ir Amim, p.

[485]Meir Margalit, “Case 2: Revoking of Demolition Order by Judge Lahovskey,” Seizing Control of Space in East Jerusalem, p. 63.

[486] Human Rights Watch interview with Sheikh Musa, Silwan, February 19, 2010.

[487]Human Rights Watch interview with Fakri Abu Diab, Silwan, February 19, 2010.

[488]Rapoport, Shady Dealings in Silwan, Ir Amim, pp. 32-33. Rapoport cites letters from plan examiners at District Planning Committee from 2008 regarding the acceptance of Al Bustan residents’ proposed town plan, and minutes of the Regional Planning and Construction Committee, Jerusalem District, February 17, 2009, finally rejecting it.

[489] Rapoport, Shady Dealings in Silwan, Ir Amim, p. 34.

[490] Id., p. 32

[491]Bimkom and Ir Amim, “Making Bricks Without Straw,” January 2010.

[492]Human Rights Watch notes of meeting with Al Bustan residents, Mr. Jabareen, and others, UN OCHA, Jerusalem, April, 2010.

[493]Plan 11555 has not yet been approved. Israeli authorities have fully approved two town planning schemes that cover Wadi Hilweh and Al Bustan: general Eastern City Plan 9 (AM/9), which designates them as an “open public area, special public area and area reserved for archaeological excavations,” where construction requires special permission, and AM/6, which is also a preservation plan. Bimkom and Ir Amim, Id.

[494]Town Plan Scheme 11555, Jerusalem local planning district, local outline plan with detailed provisions, cited by Rapoport, Shady Dealings in Silwan, Ir Amim, p. 31.

[495] Bimkom and Ir Amim, “Making Bricks Without Straw.”

[496]Jerusalem Municipality, “Launch of the King’s Garden Plan, 2.3.2010,” on file with Human Rights Watch.

[497]Human Rights Watch interviews with Al Bustan residents, February and April, 2010.

[498] Detailed blueprint of the City of David/Wadi Hilweh area from Plan 11555, cited by Rapoport, Shady Dealings in Silwan, Ir Amim, p.32.

[499]Id., p. 32.

[500]B’Tselem, “Israel police arrests children aged 12 to 15 in night raids in Silwan, East Jerusalem,” February 17, 2010, http://www.btselem.org/english/jerusalem/20100217_jm_minors_arrested_and_abused_by_police.asp (accessed July 21, 2010).

[501]Human Rights Watch interviews with A. Z., A. A., and M. O, Silwan, February 25, 2010.

[502] Human Rights Watch interview with A. Z., Silwan, February 25, 2010.

[503] Human Rights Watch interview with A. A., Silwan, February 25, 2010.

[504]Human Rights Watch interview with Daoud Siyam., Silwan, February 25, 2010.

[505] Human Rights Watch interview with Zeyad Zedane, Silwan, February 25, 2010.

[506]Maan News Agency, “Clashes in Silwan After Guard Kills Palestinian,” September 22, 2010, http://www.maannews.net/eng/ViewDetails.aspx?ID=316888 (accessed October 20, 2010).

[507] The incident was recorded and can be viewed at http://www.youtube.com/watch%3Fv%3DQAFo9-2nyOc  (accessed November 5, 2010).

[508]Universal Declaration of Human Rights (UDHR), adopted December 10, 1948, G.A. Res. 217A(III), U.N. Doc. A/810 at 71 (1948), art. 2. UN Human Rights Committee, General Comment 18, Non-discrimination (Thirty-seventh session, 1989), Compilation of General Comments and General Recommendations Adopted by Human Rights Treaty Bodies, UN Doc. HRI\GEN\1\Rev.1,1994, para. 1.

[509] International Convention on the Elimination of Racial Discrimination (ICERD), Article 1. Israel ratified the Convention on January 3, 1979.

[510]These are the “erga omnes” and “jus cogens” aspect of the prohibition against discrimination in international law. See, e.g., International Court of Justice (ICJ), Barcelona Traction, Light and Power Company Ltd. (Belgium v. Spain) (1970), paragraph 34, and Restatement (Third) of Foreign Relations of the United States, Section 702 cmts. d- i; section 102 cmt. k (1987).

[511]See, e.g., ICJ, Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, July 9, 2004 (ICJ Reports 2004, p. 136), paragraphs 111 (applicability of ICCPR in occupied territory), 112 (applicability of ICESCR in occupied territory), 113 (applicability of Convention on the Rights of the Child in occupied territory); Human Rights Committee’s concluding observations in 2003 ("in the current circumstances, the provisions of the Covenant apply to the benefit of the population of the Occupied Territories, for all conduct by the State party's authorities or agents in those territories that affect the enjoyment of rights enshrined in the Covenant and fall within the ambit of State responsibility of Israel under the principles of public international law," CCPR/C0/78/1SR, para. 11); and the Committee on the Elimination of Racial Discrimination’s concluding observations in 1998 (“Israel is accountable for implementation of the Convention, including the reporting obligation, in all areas over which it exercises effective control,” Concluding Observations, March 1998, CERD/C/304/Add.45, paragraph 12).

[512] Recently, Israel stated that its obligations under the ICCPR did not extend to the occupied West Bank because, first, “human rights and the Law of Armed Conflict” are “two systems-of-law, which are codified in separate instruments, [… and] remain distinct and apply in different circumstances,” and second, because “the Convention, which is a territorially bound Convention, does not apply, nor was it intended to apply, to areas outside [Israel’s] national territory.” “Replies of the Government of Israel to the List of Issues to be taken up in connection with the consideration of the third periodic report of Israel,” July 12, 2010, CCPR/C/ISR/Q/3/Add.1, p. 3.

[513] CERD, General Comment No. 30, 2004, paragraph 4.

[514]CERD, Concluding Observations, 2007, paragraph 32.

[515]UN Committee on the Elimination of Racial Discrimination, General Recommendation No.30: Discrimination Against Non Citizens (2004), paras. 18, 29, 36.

[516] CCPR, “Concluding observations of the Human Rights Committee: Israel,” July 29, 2010, CCPR/C/ISR/CO/3, para. 17.

[517] Id., para. 18.

[518]Id., para. 16.

[519] ICJ, Construction of a Wall.

[520]CESCR General Comment 4, “The right to adequate housing (Art.11 (1)),” December 13, 1991.

[521]Fourth Geneva Convention of 1949, Art. 49(6). Israeli officials have argued that the settlements are the result of voluntary movement by Israeli citizens and that this is not prohibited by international humanitarian law. E.g., Israel Ministry of Foreign Affairs, “Israeli Settlements and International Law,” May 20, 2001 (“The provisions of the Geneva Convention regarding forced population transfer to occupied sovereign territory cannot be viewed as prohibiting the voluntary return of individuals to the towns and villages from which they, or their ancestors, had been ousted”) http://www.mfa.gov.il/MFA/Peace+Process/Guide+to+the+Peace+Process/Israeli+Settlements+and+International+Law.htm (accessed October 20, 2010). This interpretation has been widely rejected; it also fails to address the Israeli government’s continuing policy of supporting, financing and providing military protection for settlers. Declaration of the Conference of the High Contracting Parties to the Fourth Geneva Convention, December 5, 2001, para. 12 (“reaffirm[ing] the illegality of the settlements in the said territories and of the extension thereof”), http://domino.un.org/unispal.nsf/0/8fc4f064b9be5bad85256c1400722951?OpenDocument (accessed October 20, 2010).

[522] On the customary nature of Article 55 of the Hague Regulations, see Jean-Marie Henckaerts, Louise Doswald -Beck, International Committee of the Red Cross, Customary Internaitonal Law: Rules, Vol. 1, p 1041.

[523] Article 43 of the Hague Regulations.

[524] Dinstein, Laws of War, p. 220.

[525] Id., p. 211.

[526]Article 49 of the Fourth Geneva Convention.

[527]Article 46 of the Hague Regulations of 1907.

[528]Fourth Geneva Convention of 1949, Art. 49 (1); Jean-Marie Henckaerts and Louise Doswald-Beck, Customary International Humanitarian Law – Volume I: Rules (Cambridge, Cambridge University Press, 2005), p. 457.

[529]Naletilic and Martinovic,(Trial Chamber), March 31, 2003, para. 519-521, cited in Case Law of the International Criminal Tribunal for the Former Yugoslavia, http://www.hrw.org/reports/2004/ij/icty/2.htm#_Toc62882623.

[530] Id.

[531]The following analysis draws from Grazia Careccia and John Reynolds, Al-Nu’aman Village: A Case Study of Indirect Forcible Transfer, Al Haq, 2006, pp. 24-26, http://www.alhaq.org/pdfs/Al-Numan%20Village.pdf (accessed July 5, 2010).

[532]The Prosecutor v. Milomir Stakić, Case No. IT-97-24-T, Appeals Chamber, Judgment, 22

March 2006, para. 281, 279.

[533]The Prosecutor v. Momčilo Krajišnik, Case No. IT-00-39-T, Trial Chamber I, Judgement, 27 September 2006, para. 729, 732.