I.    Introduction

¶ 1         Apartheid Wall Is a Human Rights Violation¹ reads part of the title to an article referring to a report attributed to the International Committee of the Red Cross. According to another piece, the United Nations Commission on Human Rights "strongly condemned human rights violations of the Israeli occupation authorities in the occupied Palestinian territory..."² and "also strongly condemned the Israeli occupation of the territories as being... a flagrant violation of human rights. It strongly condemned the construction of the Israeli wall in the occupied Palestinian territory."³ In these and similar manners it is typically contended that "[t]he harm" caused by "[t]he measure of constructing the wall within the occupied Palestinian territory and related measures taken by the Government of Israel" includes, inter alia, "[i]nfringements on the freedom of movement contrary to the International Covenant on Civil and Political Rights."⁴ Among other violations, continue these allegations, are Israel's "[i]nfringements on the rights to education, work and adequate standard of living contrary to the Convention on the Rights of the Child and the International Covenant on Economic, Social and Cultural Rights...."⁵ Typical specific allegations of human rights violations by Israel commonly include checkpoints or roadblocks, closures, and curfews that restrict the freedom of movement,⁶ as well as the destruction of homes and agricultural property.⁷

II.    Human Rights in Wartime

¶ 2         Although "International Humanitarian Law applies to situations of belligerent occupation as well as situations where hostilities rise to the level of armed conflict," it has been said that its application "does not preempt the application of international human rights law.... In situations of this complexity, both legal regimes complement and reinforce each other."⁸ The International Court of Justice, as well, considered that international human rights law also operates in times of armed conflict.⁹ The International Court has pointed out that in light of the fact that "the territories occupied by Israel have for over 37years been subject to its territorial jurisdiction as the occupying Power," Israel "[i]n the exercise of the powers available to it on this basis,... is bound by the provisions of the International Covenant on Economic, Social and Cultural Rights."¹⁰The Court consequently believes that international human rights law is indeed applicable "within the Occupied Palestinian Territory,"¹¹ and that "[t]he wall, along the route chosen, and its associated regime gravely infringe a number of rights of Palestinians residing in the territory occupied by Israel.... The construction of such a wall accordingly constitutes breaches by Israel of several of its obligations under the applicable international humanitarian law and human rights instruments."¹²

¶ 3         But are issues such as the legality of Israel's security barrier indeed within the domain of international human rights law? There are three basic lines of reasoning, two of which will be briefly mentioned and the third of which will be analyzed more extensively, that lead to an answer of "no" to this question. In other words, international law does not view such matters as belonging to the realm of human rights, and as a result the situation of human rights in the West and Gaza is not the responsibility of Israel.¹³

¶ 4         First of all, pursuant to the Oslo Accords, most Palestinian communities were turned over to the control of the Palestinian Authority, which created a situation in which "Israel does not have direct control over all the Occupied Territories, and more than 90 percent of the Palestinian population is under the civil and security control of the Palestinian Authority. ..."¹⁴ Thus, even assuming that the regime of international human rights were applicable to occupied territories as such, the overwhelming majority of persons in the Gaza Strip and the West Bank are living under direct Palestinian (and therefore not Israeli) control and hence are not under Israel's jurisdiction as a result of the transfer to the Palestinian Authority of responsibility and authority over them pursuant to various international agreements¹⁵ between Israel and the Palestinians.¹⁶ Israel consequently has no effective control over them and logically is therefore not responsible regarding individuals living under Palestinian rule.¹⁷ Specifically according to Article XIX of the Interim Agreement on the West Bank and the Gaza Strip Between the Palestinians and Israel, their respective authorities must be exercised "with due regard to internationally accepted norms and principles of human rights and the rule of law."¹⁸ Due to the lack of effective Israeli control over Palestinians under Palestinian Authority control, Israel is not responsible for their human rights.¹⁹

¶ 5         The second reason why Israel's security barrier is beyond the scope of human rights law is that jurisdictional issues in this realm should be interpreted in a manner so as to be applicable to those physically present in the State's sovereign territory or otherwise governed by its domestic laws,²⁰ in accordance with Article 29 of the Vienna Convention on the Law of Treaties which stipulates that "a treaty is binding upon each party in respect to its entire territory."²¹ The international law of human rights was principally intended as governing the relationship between citizens and their own State.²² The obligations of the State and human rights relationship are based theoretically on the legitimacy of government stemming from the agreement of those governed and the government's responsibility to preserve human rights,²³ for example, as the United States Declaration of Independence stipulates, "all men... are endowed... with certain unalienable Rights" and "[t]hat to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed."²⁴ The regime of international human rights was consequently developed in the framework of this relationship between individuals and their government.²⁵ "Human rights," explains Robert Kolb, are concerned with the organization of State power vis-a-vis the individual. They are the product of the theories of the Age of Enlightenment and found their natural expression in domestic constitutional law. In regard to England, mention may be made of the 1628 Petition of Rights, the 1679 Habeas Corpus Actand the 1689 Bill of Rights; for the United States of America, the 1776 Virginia Bill of Rights; for France, the 1789 Declaration of the Rights of Man and of the Citizen."²⁶

¶ 6         "Human rights law," as G.I.A.D. Draper illuminates,

purports to govern part of the relations between government and governed by setting limits to the intrusions by governments upon those areas of human freedom thought to be essential for the proper functioning of the human being in society and for his development therein. . . . These freedoms, when internationalized in human rights instruments, are neither intended nor adequate to govern an armed conflict between two States in a condition of enmity. . . . The regime in no way purports to regulate the conduct of the war between two States. . . . Hostilities and government-governed relationships are different in kind, origin, purpose, and consequences. Accordingly, the law that relates to them, respectively, has the like differences. Human rights regimes and the humanitarian law of war deal with different and distinct relationships.²⁷

¶ 7         Draper thus concludes that "human rights instruments are unable to afford the content and quantity of the law necessary to control international armed conflicts...."²⁸ Hence, regarding situations of armed conflict, the possibility of transferring the regime of human rights applicable within a State to the international sphere is nonexistent in light of the innate and intrinsic antagonism between combat forces and the enemy population during warfare and between the occupying authority and the occupied population in the context of an occupation scenario.²⁹ "It goes without saying," explains Yoram Dinstein,

that the relationship between an individual and an enemy state in wartime is entirely different from the relationship between an individual and his or her state (or any other state) in peacetime. If in peacetime one may presume that a certain degree of goodwill characterizes the relations between the state and at least many of the individuals to which it owes certain obligations, in wartime no such presumption is valid vis-a-vis enemy subjects. The situation is abnormal and it calls for a special legal mechanism.³⁰

¶ 8         Regarding the relationship between the occupying authority and the occupied population, Dinstein elaborates: "The government of an occupied territory by the occupant is not the same as a State's ordinary government of its own territory: a military occupation is not tantamount to a democratic regime and its objective is not the welfare of the local population. Most peacetime human rights are suspended in time of belligerent occupation."³¹ He continues and points out that while nevertheless "the powers of the occupant are circumscribed in a number of significant ways," these restrictions are in essence "designed to afford the civilian population of the area a minimal protection of life, liberty and property, and of a few fundamental freedoms not related to the state of war."³² This limitation of applicability would of course apply to the International Covenant on Civil and Political Rights³³ as well as to treaties such as the Convention for the Protection of Human Rights and Fundamental Freedoms³⁴ and the American Convention on Human Rights.³⁵

¶ 9         This second rationale is intricately tied in with the third fundamental reason, which will now be analyzed in more depth, that issues like the legality of Israel's security barrier are outside the realm of international human rights law. Simply put, there is an inherent contradiction between international humanitarian law applicable in armed conflict situations and international human rights, and they are consequently two mutually exclusive regimes.³⁶

¶ 10         The idea behind the regime of international humanitarian law is to govern the behavior of a State involved in an armed conflict situation, and the rules and principles were structured in the framework of obligations by which combatants were to abide. On the other hand, the idea behind the regime of international human rights is its subjects' receipt of a certain treatment, and this regime was accordingly designed as a sequence of rights.³⁷ Louise Doswald-Beck and Sylvain Vite emphasize this by explaining that international humanitarian law "indicates how a party to a conflict is to behave in relation to people at its mercy, whereas human rights law concentrates on the rights of the recipients of a certain treatment."³⁸

¶ 11         Moreover, in order for the humanitarian framework in the Fourth Geneva Convention, for instance, to apply, a condition of nationality or other status must exist such as would make the person a "protected person."³⁹ In the words of Article 4: "Persons protected by the Convention are those who, at a given moment and in any manner whatsoever, find themselves, in case of a conflict or occupation, in the hands of a Party to the conflict or Occupying Power of which they are not nationals. Nationals of a State which is not bound by the Convention are not protected by it."⁴⁰ International human rights law, on the other hand, lays down no such conditions for its applicability.⁴¹

¶ 12         The question whether the 1949 Geneva Conventions are applicable is furthermore dependent upon whether the armed conflict is considered international or "not of an international character."⁴² Similarly, whether Protocol I⁴³ or whether Protocol II⁴⁴ of the 1977 Additional Protocols to the Geneva Conventions relating to the protection of victims of armed conflicts is to be applied in any particular armed conflict situation is dependent on whether the armed conflict is considered international in nature (in which case Protocol I would apply) or non-international (in which case Protocol II would apply).

¶ 13         In addition, while the principles of international human rights law may in certain instances be derogated from, the rules of international humanitarian law may not be derogated from for the simple reason that they were specifically developed to apply to armed conflict situations.⁴⁵

¶ 14         In armed conflict situations the applicable regime is therefore that of international humanitarian law and not that of international human rights,⁴⁶ since international humanitarian law was developed particularly with armed conflicts in mind, and is thus more suitable to address humanitarian issues that arise in these conflict situations.⁴⁷

¶ 15         During war, the international legal standards that apply are not always the same as the legal standards that apply during peace.⁴⁸ This is but to state the obvious, since as previously mentioned human rights law controls a State's relationship with its citizens (and this law is thus enforceable only vis-a-vis the citizen's own State), whereas the laws of war are intended to regulate antagonism between States, and may be enforced against States and particular participants in the armed conflict.⁴⁹ Consequently, "one ought not to confuse international humanitarian law with human rights,"⁵⁰ writes Dinstein. Although the protection of the individual is paramount both in the regime of human rights law as well as in the humanitarian law regime, there are, as Christopher Greenwood explains, nonetheless

important differences between them. Human rights law is designed to operate primarily in normal peacetime conditions, and within the framework of the legal relationship between a state and its citizens. International humanitarian law, by contrast, is chiefly concerned with the abnormal conditions of armed conflict and the relationship between a state and the citizens of its adversary, a relationship otherwise based upon power rather than law.⁵¹

¶ 16         International humanitarian law, explains Robert Kolb, in fact "does not apply to the relations of a State with its own nationals. Its sole objectives are to govern relations between a belligerent and enemy civilians who, as a result of the occupation of the territory of the State of which they are nationals, are under the control of the adverse power."⁵² Thus, summarizes Greenwood, "[i]nternational humanitarian law sets certain bounds to the use of force against an adversary;" it "sets limits to the way in which force may be used" and "determines... the relationship of the parties to a conflict with one another."⁵³

¶ 17         Since international human rights law and international humanitarian law have historically provided different answers to similar questions, it is not possible to apply both regimes simultaneously.⁵⁴ Therefore the only applicable regime which balances humanitarian needs with warfare's innate nature, including the unique issues arising in the course of belligerent occupation, is that of international humanitarian law.⁵⁵ The separate and distinct historical foundations of each of the two regimes as well as their respective applicable scope make clear that they cannot function simultaneously, side by side. International humanitarian law is inherently a law that is meant to function between States during wartime,⁵⁶ always mindful of military considerations,⁵⁷ and concerns the manner in which a party in conflict is to conduct itself vis-a-vis protected persons.⁵⁸ "As this law is still largely rooted in its traditional origins," write Doswald-Beck and Vite, "it is not alien to military thinking and has the advantage of being a realistic code for military behaviour as well as protecting human rights to the maximum degree possible in the circumstances."⁵⁹This regime is thus more suitable for dealing with the complex humanitarian issues arising out of situations of armed conflict and belligerent occupation.⁶⁰ The regime of human rights, on the other hand, is meant to function during peace.⁶¹ Peace, proclaimed the International Conference on Human Rights held in Teheran, is "indispensable to the full realization of human rights and fundamental freedoms."⁶² "[P]eace is the underlying condition for the full observance of human rights and war is their negation," declared the International Conference.⁶³ Thus to concomitantly apply two incompatible regimes would be inappropriate.⁶⁴ Clearly, then, the two regimes are mutually exclusive,⁶⁵ and the applicable law is international humanitarian law.⁶⁶

¶ 18         Most human rights that exist during peace are consequently in temporary suspension during war. At the same time, disparate and special human rights, stemming from the extraordinary circumstances surrounding war, are created as the result of war and operate in place of those suspended.⁶⁷ The consequent effect of this unique situation created by war is that civilians, even those in occupied areas, may lawfully have their liberty circumscribed and their property seized, and they may however regrettably even legitimately get killed.⁶⁸ "In the abnormal situation of war, an extraordinary legal structure is called for," explains Dinstein.⁶⁹ "It is not enough to prescribe legal norms," he points out. "[T]he norms have to manifest themselves in the actual practice of States," which of course is the natural method by which the laws of war, as all international law, are created.⁷⁰ Thus, since States typically have been more interested in achieving a successful outcome in war than worried about the human costs, it would be a risky venture at best for the law to venture too far afield from reality, and might thereby prove deleterious for the law itself.⁷¹ In fact, given that international humanitarian law developed in light of military considerations, from a purely practical standpoint there is actually a greater likelihood of compliance with it thereby ensuring more of a chance that human beings will actually be better protected during armed conflict situations than would happen under a regime of vague human rights which in any respect generally allow for derogation from their applicability during times of national emergencies.⁷² "Unlike human rights law," point out Doswald-Beck and Vite, "there is no concept of derogation in humanitarian law. Derogation in human rights law is allowed in most general treaties in times of war or other emergency threatening the life of the nation. Humanitarian law is made precisely for those situations, and the rules are fashioned in a manner that will not undermine the ability of the army in question to win the war."⁷³ For instance, the exercise of regular human rights during times of peace may be subject to limitations "in time of public emergency,"⁷⁴ as well as "in the interests of national security or public safety, public order... the protection of public health or morals or the protection of the rights and freedoms of others,"⁷⁵ or "[i]n time of war or other public emergency threatening the life of the nation."⁷⁶

¶ 19         The laws of war thus strive to maintain an appropriate balance between humanity and military necessity within a framework "where to a large extent human rights are in abeyance, leaving individuals to rely solely on the protection offered by international humanitarian law."⁷⁷ The regime of humanitarian law and the regime of human rights law are as diametrically opposed to each other as they are distinct from each other.⁷⁸ "[T]he law of human rights seeks to reflect the cohesion and harmony in human society and must, from the nature of things, be a different and opposed law to that which seeks to regulate the conduct of hostile relationships between States or other organized armed groups,"⁷⁹ elucidates Draper. After all, "[i]t is the law of armed conflict which is designed to mitigate, as far as possible, the 'evils of war.' It is therefore difficult to support a conclusion that the core values of human rights law now create a human rights nexus between combatants engaged in military operations."⁸⁰

¶ 20         In this regard, too, Georg Schwarzenberger writes of "the dilectic interplay... of the necessities of war and the standard of civilization" and "assessing the balance actually attained between them...."⁸¹ Clearly, "[i]nternational humanitarian law in armed conflicts is a compromise between military and humanitarian requirements," explains Greenwood. "Its rules comply with both military necessity and the dictates of humanity."⁸² To artificially force the regime of international human rights to meld with the regime of the law of armed conflict would militate against the practical advantages of keeping these two regimes separate and would ignore the reasons behind the historical differences between them.⁸³

¶ 21         "[I]t is not the function of the international law of war," observes Ernst H. Feilchenfeld, "to oblige belligerents to create wartime paradises which nobody is under an obligation to establish even in peacetime."⁸⁴ After all, "[u]nder international law peace is regarded as the normal, and war as the abnormal, situation. Where protection is afforded through rules on warfare, it is their purpose to prevent normal treatment from falling below a certain level of abnormalcy,"⁸⁵ he explains.

¶ 22         Specifically concerning military occupation, a military government is not identical to a government in a democracy. The purpose of a military occupation is not the welfare of the local inhabitants of the occupied area. During the occupation, the occupying power may suspend most human rights that might be applicable during peace. Yet, the occupying power's authority is not boundless; there are limitations intended to grant the inhabitants "a minimal protection of life, liberty and property, and of a few fundamental freedoms not related to the state of war."⁸⁶ However, even though "[a]n occupying power is responsible for respecting the fundamental human rights of the population under its authority," it is at the same time recognized that "an occupying power may take such measures of control and security as may be necessary as a result of the war."⁸⁷

¶ 23         It must be understood, explains Ernst Fraenkel, that

an occupation government, even if it is conducted under the rule of law, is basically different from the government of a constitutional state. In the latter, the bearers of power are the representatives of those who are subject to that power, and the stability of the whole system demands that there be some degree of mutual trust, each in the other . . . . An occupation regime, however, is the rule of a foreign government which does not even pretend to represent the will of the governed population. No ethnic ties, no shared traditions, no voluntary act of political confidence unite the rulers and their subjects. Indeed, each mistrusts the other. Under these conditions, limitations of power which derive from the people's participation in the government . . . are out of the question.⁸⁸

¶ 24         Fraenkel continues, pointing out that

the problem of supremacy of law under the peculiar conditions of an occupation regime cannot be solved merely by reference to general considerations of justice and democracy. The rule of law in a democratic state is based on the consent of the citizens. In an occupied territory, public power is enforced upon the residents regardless of their inner feelings. Therefore the concept of 'rule of law' has different meanings in a government based on democratic consent and a government based on military force.⁸⁹

Furthermore, instructs Feilchenfeld, one should not "impose a higher standard on wartime occupants than on peacetime sovereigns . . . ."⁹⁰

¶ 25         Thus, for human rights to be more effectively protected during war, the more inclusive and better coverage designed for the unique situation of wartime is afforded by the humanitarian law specifically adapted for war.⁹¹ After all, the special constraints and practicalities of warfare and combat situations have been accepted by States and have been taken into account in the framework of the laws of war,⁹² which as irony would have it, is as a matter of fact, "one of the oldest and most venerable branches of international human rights law... which is itself a highly organized and systematic campaign of human rights deprivation."⁹³ In other words, war is naturally the ultimate negation of human rights and the total absence of humanity, viewed by the human rights systems in a disparaging fashion as a temporary anomaly.⁹⁴ There is therefore no common ground between the two regimes.⁹⁵ The laws of war are as a result "a derogation from the normal regime of human rights...."⁹⁶ Certainly humanitarian principles currently abound, yet basically speaking the goals of human rights laws are not the same as those of the laws of war.⁹⁷ Thus, writes Draper, "[t]he attempt to confuse the [regimes of international humanitarian law and human rights law] is insupportable in theory and inadequate in practice. The two regimes are not only distinct but are diametrically opposed."⁹⁸

¶ 26         Despite the appearance of the word "human" in the context of the expression "international humanitarian law," it remains

essential to resist any temptation to regard them as intertwined or interchangeable. The adjective "human" in the phrase "human rights" points at the subject in whom the rights are vested: human rights are conferred on human beings as such (without the interposition of States). In contrast, the adjective "humanitarian" in the term "International Humanitarian Law" merely indicates the considerations that may have steered those responsible for the formation and formulation of the legal norms.⁹⁹

International humanitarian law, or the law of international armed conflict, "is the law channeling conduct in international armed conflict, with a view to mitigating human suffering."¹⁰⁰

¶ 27         One possible way, though, that the humanitarian law regime of belligerent occupation might be reconciled with the human rights regime is elucidated by Jochen Abr. Frowein: "For situations in which humanitarian law gives a special justification for an interference with individual rights, this must also be accepted as justification for interference with rights protected according to human rights treaties," in the sense that "specific rules take precedence as lex specialis whenever they have a specific justification for dealing with specific problems. That will mean that in many areas humanitarian treaties will take precedence."¹⁰¹ In other words, "international humanitarian law takes precedence over human rights treaties as lex specialis in so far as it may constitute a special justification in armed conflicts for interference with rights protected under human rights treaties...."¹⁰² Consequently, when considering the Fourth Geneva Convention, for instance, "[i]n cases of belligerent occupation... the specific rules of the... Convention take precedence" over obligations arising under applicable human rights conventions "regarding specific measures which are justified on the basis of these provisions."¹⁰³

III.    No Perceived Need for Security Barrier

¶ 28         Between 1993 and 2000, the Palestinians and Israelis had been engaged in negotiations aimed at settling their decades-long dispute in a peaceful manner. Israel was dedicated to making the Palestinians into prosperous neighbors as well as into economic partners through intertwined and wide-ranging economic interaction.¹⁰⁴ Cooperation between Palestinians and Israelis abounded in areas such as health, police, security, agriculture, rescue services, fire control, pollution, and universities. Israel and the Palestinians were determined to improve the socioeconomic status of the entire region, and both perceived the enhancement of their bi-lateral economic relations as critical to the success of the peace process.¹⁰⁵ On a social level, personal friendships burgeoned between Israelis and Palestinians as the latter frequented Israeli malls, cities, restaurants, and social and athletic events. Perhaps most importantly, none of the successive prime ministers of Israel so much as contemplated taking on the enormous expense of building a security barrier as a means against infiltrating terrorists from the West Bank. Simply put, there was no need or justification for such a mammoth, expensive project as a security barrier, which turned into one of the biggest and most costly construction projects in the history of the State of Israel.¹⁰⁶

¶ 29         Yasser Arafat, head of the Palestinian National Authority, was then offered in 2000 a deal during peace negotiations with the Israelis to finally end the conflict between the Palestinians and Israel, a deal, according to Ambassador Dennis Ross, in charge of Middle East peace process negotiations for the first President Bush and President Clinton, that would have given the Palestinians a State "with territory in over 97 percent of the West Bank, Gaza, and Jerusalem,"¹⁰⁷ with the Arab neighborhoods of East Jerusalem as its capital, and with the unlimited right of return to it for Palestinian refugees.¹⁰⁸

¶ 30         Arafat's response to this generous offer was, regrettably, to exchange war for negotiations, thereby denying the Palestinian people an opportunity for peace, dignity, and prosperity while instigating and stimulating them to become living bombs.¹⁰⁹ Israel came under siege. Starting in September 2000, Israel and Israelis were subjected to an intensive terrorist offensive, and for the last five years were the object of massive, ruthless, and extensive terror attack. Tens of thousands of terrorist attacks were conducted against Israelis over the past five years,¹¹⁰ ranging from isolated shootings to rocket, missile, and mortar attacks on Israeli cities, towns, and villages, in addition to thousands of shooting incidents.¹¹¹ Terrorists perpetrated close to 1000 of these strikes in Israel within the pre-1967 "Green Line,"¹¹² and caused more than 8590 casualties.¹¹³ Of the total number of people killed by terrorist attacks from September 2000, over 750 of them—the vast majority—were civilians, just as the vast majority of those injured, more than 5250 people, were also civilians.¹¹⁴

¶ 31         Typically many suicide terrorists stroll over to Israeli cities and villages, often located just minutes away on foot from Palestinian-controlled areas,¹¹⁵ quickly finding themselves in the midst of throngs of Israelis. The terrorists' mission of inflicting indiscriminate death is made easier by the proximity of women, children, and elderly people going about their daily lives—shopping in malls, eating in restaurants, drinking in pubs, lined up waiting to enter a discotheque, traveling on buses,¹¹⁶ celebrating religious ceremonies and holidays, and the like. It is only a fifteen-minute walk from the Palestinian city of Qalqilya to the Israeli city of Kfar Saba, where five people have been murdered in four recent terrorist attacks; it is also a fifteen-minute walk from Palestinian-controlled territory to the Israeli kibbutz Metzer, where terrorists murdered six people in two attacks; it is a thirty-minute walk from Palestinian-controlled territory to the Megiddo Junction in Israel, where terrorists killed seventeen people in a terrorist attack; and it is a sixty-minute walk from Palestinian-controlled territory to the Israeli city of Afula, where terrorists murdered twenty-six people in five terrorist attacks.

¶ 32         The terrorist campaign waged against Israel and Israelis beginning in 2000 is often, and mistakenly, referred to as the second "Intifada."¹¹⁷ "Intifada suggests a popular uprising," explains Danny Ayalon, Israel's Ambassador to the United States. "[I]t's not a popular uprising—it was a very well-orchestrated.... coalition of terror where you see the [Palestinian Authority] cooperating with Hamas, Tanzim, PFLP, [Islamic] Jihad—all of them working together against all the commitments and agreements."¹¹⁸ Far from being a "popular uprising,"¹¹⁹ the wave of terrorism committed against Israel and Israelis is in fact a "crime against humanity." According to Human Rights Watch, "[t]he scale and systematic nature of the [terrorist] attacks on [Israeli] civilians... meets the definition of a crime against humanity."¹²⁰ So, too, Article 7 of the Rome Statute of the International Criminal Court of July 17, 1998, classifies murder, as well as "[o]ther inhumane acts of a similar character intentionally causing great suffering, or serious injury to body or to mental or physical health" as "crimes against humanity" when they are "committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack."¹²¹ Moreover, to the extent that Palestinians could be considered to be engaged in an international armed conflict against Israel and Israelis, the following acts perpetrated by terrorists also could be classified as war crimes:

Intentionally directing attacks against the civilian population as such or against individual civilians not taking a direct part in hostilities;

Intentionally directing attacks against civilian objects, that is, objects which are not military objectives;

. . .

Killing or wounding treacherously individuals belonging to the hostile nation or army;

. . .

Utilizing the presence of a civilian or other protected person to render certain points, areas or military forces immune from military operations.¹²²

¶ 33         Had the Palestinian leadership under Arafat demonstrated fidelity to the peace process instead of initiating and perpetuating violence and incitement, there would be no security barrier today.¹²³ There would have been no need for one.¹²⁴ As a response to violence run amok,¹²⁵ and only in this environment, the security barrier has been embraced by Israelis virtually across the political spectrum as a necessary means to diminish terrorism. Significantly, Israeli experience in the Gaza Strip, which has had a security barrier separating it from Israel for years, has shown that terrorism drops dramatically where there is a security barrier. Even the portions of barrier built so far in the West Bank, as well as the fence along the Lebanese border, have proven their efficacy.¹²⁶ For instance, a comparison of the year preceding the construction of the barrier with the year following construction demonstrates a decrease by 91 percent in the number of those injured in terrorist attacks and a drop of 84 percent in the number of those killed.¹²⁷ Simply put, the security barrier is a non-violent, reversible form of defense that quickly and effectively reduces terrorism.¹²⁸

IV.    Determining the Barrier's Route

¶ 34         Israel realizes that the determination of any permanent border can be accomplished only through direct negotiations with the Palestinians.¹²⁹ In the meantime, the security barrier annexes no territory to Israel,¹³⁰ nor does it in any way affect the ownership of private Palestinian lands or any Palestinian's legal status.¹³¹ Israel strives to erect the fence on public land, but in instances in which this is not feasible, and private land is as a result requisitioned, compensation is proffered for its use.¹³² Furthermore, barren land is preferred to agricultural land and unproductive land to productive land.¹³³ Additionally, Israel takes into account the effect that the fence will have on the daily lives of the Palestinian residents of the area as a major factor influencing the routing of the fence.¹³⁴ The maintenance of daily life along the barrier has several facets: (1) the assurance of access to agricultural lands located on the other side of the barrier; (2) access to employment, health care, municipal services, education, shopping, and family; and (3) maintenance of commerce. Serious consideration consequently is given to aspects of daily life such as the location of agricultural fields, familial connections, municipal planning boundaries, commercial and educational ties, as well as access to health care and other municipal services.¹³⁵ Where possible, the route of the fence is adjusted according to these concerns in order to prevent the disruption of daily life.¹³⁶ In cases where such route adjustments are impossible, local solutions for daily life issues are adopted. Every effort is thus made to minimize the effect of the fence on the daily lives of the Palestinian population.¹³⁷

¶ 35         The procedure for seizure of property in the erection of the fence contains significant, built-in protections, including administrative remedies before the property is seized,¹³⁸ such as notification, an objections process, and petitioning the Israel High Court of Justice. Notification to property owners regarding an intended seizure takes place in a number of ways: direct notification by delivery of the seizure order to the property owner by way of the Palestinian liaison offices, copies of the seizure notice and an invitation to a "walkthrough" of the planned route are posted on the bulletin board in the offices of the Civil Administration, and invitations to the walkthrough are also scattered around the property that is planned for seizure. When possible, the heads of the villages affected as well as the village engineers are notified.¹³⁹

¶ 36         After the publication of the seizure notice, and on the date indicated in the invitation, the walkthrough of the planned route is held. The purpose of the walkthrough is to clarify the exact planned route and to enable any property owner to ascertain the extent of damage, if any, expected to his property. Hundreds of property owners have participated in these walkthroughs.¹⁴⁰

¶ 37         Property owners affected by the planned route are notified that they have a week from the walkthrough to object to the seizure of their property. There are no formal requirements for the format of the objections, nor is any cost attached to filing them. The objecting property owner need not have legal representation, though he may if he so chooses, and most have indeed chosen to be represented by legal counsel. Often, owners initially request an extension of the period for filing the objection. These requests are routinely granted. Numerous local route changes have been effected through the objections process. These changes are primarily designed to ensure that local life along the fence can be maintained.¹⁴¹

¶ 38         Moreover, once the route of the fence is established, a further examination is undertaken to determine the uses of the land and other material links for the area between the fence and the Armistice Line (that is, within an area called the Seam Zone). If residents of areas on the eastern side of the fence cultivate land within the Seam Zone or if other specific interests link residents to the Seam Zone, arrangements are made to enable the continued cultivation or links to continue.¹⁴²

¶ 39         Should the process of objections not yield the desired result for the owners of property affected by the fence, they may file an objection to the land requisitions with the Supreme Court of Israel sitting as the High Court of Justice.¹⁴³ In fact, when the High Court is petitioned for this purpose, the work on the relevant portion of the barrier is postponed to enable the petitioner to proceed with his claim.¹⁴⁴ Dozens of such petitions have been filed.¹⁴⁵ In the framework of both the objection process and court proceedings numerous changes in the route of the barrier have been decided upon and other actions have been taken that were designed to improve the daily life along the barrier.¹⁴⁶ Moreover, decisions of the High Court have annulled army seizure orders in cases in which it has determined that not enough account was taken of the disruption caused to the daily of life of the Palestinians, and ordered the alteration of the route of the barrier. In June 2004, for instance, the Israel High Court of Justice upheld a Palestinian petition and indeed annulled several army land seizure orders.¹⁴⁷ The High Court ruling determined that the security advantages arising from the planned route of a section of the barrier near Jerusalem were not proportional to the disruption caused to Palestinian daily life in that area, and that the route must be altered in some places and re-examined in others to take into account the proper balance between security and humanitarian considerations.¹⁴⁸ In compliance, Israel Prime Minister Ariel Sharon ordered the Ministry of Justice and the defense establishment to find a less disruptive route for the barrier.¹⁴⁹ Accordingly, after months of reassessment and deliberations, the defense establishment presented Prime Minister Sharon and Minister of Defense Shaul Mofaz with a new route for the security barrier that diminished by roughly sixty percent the area encompassed by the barrier's original route.¹⁵⁰

¶ 40         In actuality, most West Bank Palestinians reside east of the security barrier, and very few villages are located to its west.¹⁵¹ Although the barrier does restrict some movement (its purpose, after all, is to save Israeli lives by keeping out terrorists¹⁵²), Israel strives to minimize the inconvenience by permitting people and commodities to pass through the many gates placed into the barrier¹⁵³ for the use of both Palestinians as well as for Israelis.¹⁵⁴

¶ 41         The potential of the fence to disrupt daily life along its route is taken into account during its construction. The initial routing of the fence, in fact, is done in such a way as to minimize potential hardships along the route. Solutions for anticipated problems are sought and integrated into the initial planning of the route.¹⁵⁵ During the first phase of the routing of the fence some mistakes were made, with several communities becoming separated from their agricultural lands while some Palestinian communities were enclosed within the fence. Following the fence's initial operation period, the Israel Civil Administration performed a study of its effects on the ground. The implementation of its recommendations began with the dismantling of the fence initially erected east of Baqa al-Sharqiya.¹⁵⁶ Other changes in the fence's route accordingly have been carried out¹⁵⁷ while additional ones are designed. Furthermore, new roads also have been planned to accommodate daily needs of the Palestinian residents of the area, as well as an underground passageway between the Palestinian cities Hable and Qalqilya. In places where the barrier caused delays in the arrival of schoolchildren to school, Israel initiated, and funds, a busing program to ensure the arrival of pupils on time for their classes.¹⁵⁸

¶ 42         Of the approximately 130 miles which have been completed,¹⁵⁹ more than ninety-five percent of Israel's barrier is chain-link fence, while some segments of concrete wall, consisting of about five percent of its length,¹⁶⁰ were placed along some inter-city highways to deter terrorist sniping at passing Israeli civilian vehicles¹⁶¹ as has been taking place for years, and in some populated places to minimize the amount of land that must be used to construct an antiterrorist barrier.¹⁶²

¶ 43         Although the barrier does restrict some Palestinians from going easily from one place to another, the resulting inconvenience itself does not make the barrier illegal under international humanitarian law. Even if the inconvenience affects those who neither participated nor assisted in the perpetration of hostile actions, they nevertheless must adjust themselves to the reality of measures that are taken due to military necessity.¹⁶³ Every time there is an armed conflict there will be people who will be inconvenienced or even suffer profound losses. This is one of the lamentable aspects of war, a part of "the stern realities of warfare,"¹⁶⁴ "the harsh necessities of war,"¹⁶⁵ that reflect "the harsh realities of naked power in wartime."¹⁶⁶ It is unfortunately impossible to divorce the horrendous consequences of war from the reality of its impact on civilian life in the vicinity. Even "while observing the specific prescriptions of the Hague Regulations against spoliation and appropriation," for example, observes Julius Stone, an occupying power can "still reduce the local people and territory to economic ruin."¹⁶⁷

¶ 44         The dreadful consequences of armed conflict were not lost on the drafters of the Hague Regulations Respecting the Laws and Customs of War on Land¹⁶⁸ and the Fourth Geneva Convention relative to the Protection of Civilian Persons in Time of War,¹⁶⁹ yet the architects of these international conventions nevertheless realized that military necessity is, however problematic, a legitimate and essential consideration as well. As the Fourth Hague Convention's Preamble reveals, military necessity has been taken into account in framing the regulations: "[T]he wording of [the Convention's provisions] has been inspired by the desire to diminish the evils of war, as far as military requirements permit . . . ."¹⁷⁰ It is thus only to state the obvious to say that military considerations must play a crucial and vital role in any armed conflict situation.

V.    Along the "Green Line"

¶ 45         Israel has emphasized time and time again that the security barrier is an interim, temporary measure designed to confront the terror attack;¹⁷¹ private property required for the erection of the fence is seized under orders valid for only a limited period of time¹⁷² in the effort to impede the perpetration of deadly terrorist attacks against innocent Israelis. If it is to achieve this purpose, the route of the barrier ought not take some arbitrary line drawn in green color on a map for political reasons,¹⁷³ a line that even splits Arab villages down the middle,¹⁷⁴ the armistice demarcation line (that is, in essence, the pre-1967 "Green Line") from the 1949 General Armistice Agreement with Jordan,¹⁷⁵ as determinative of what will accomplish this. Although the armistice demarcation line reflected a contextual reality relevant at that time, it is hardly relevant to what is needed today to impede and block terrorist infiltration being carried out against Israelis.

¶ 46         The Armistice Agreement itself in fact specifically dictates in Article II(2) that it shall in no "way prejudice the rights, claims and positions" of Jordan or Israel "in the ultimate peaceful settlement of the Palestine question, the provisions of the Agreement having been dictated exclusively by military considerations."¹⁷⁶ According to Article VI(9), moreover, Jordan and Israel agreed upon the armistice demarcation lines "without prejudice to future territorial settlement or boundary lines or to claims of either Party relating thereto."¹⁷⁷

¶ 47         It is ironic that the Palestinians are now championing the Green Line, as they have never considered it as binding on them or limiting Palestinian aspirations,¹⁷⁸ yet they reveal their own motives when they nonetheless demand that the "Green Line" unilaterally bind Israel.¹⁷⁹

¶ 48         Taking into account current relevant topographical, demographic, and strategic criteria,¹⁸⁰ and not antiquated map lines that were never intended to serve as a permanent border,¹⁸¹ is thus the only way to effectively and efficiently attempt to create an effectual defense against terrorism. In planning the route of the fence, great effort is in parallel made to minimize the disruption to both Palestinian as well as Israeli daily life along its route.¹⁸²

¶ 49         A substantial Israeli population that has been a constant victim of terrorism currently lives on the other side of the "Green Line" in the disputed territories, the final status of which, according to international agreements with the Palestinians, is to be negotiated.¹⁸³ Until direct negotiations between the parties resolve this final status, however, the Israeli government, just as any government in the world, must endeavor to protect its citizenry from terrorist atrocities.¹⁸⁴ The government of Israel, therefore, is obligated to defend all its citizens, including those living in disputed territories, in the best, most effective way possible.¹⁸⁵ The Oslo Agreements with the Palestinians in fact gave Israel "the responsibility for overall security of Israelis and Settlements, for the purpose of safeguarding their internal security and public order" and granted Israel "all the powers to take the steps necessary to meet this responsibility."¹⁸⁶

VI.    Unconventional Armed Conflict

¶ 50         In the Israel High Court of Justice ruling, Ajuri v. Commander of IDF Forces, Chief Justice¹⁸⁷ Aharon Barak accentuated, and in essence summarized, the exceptionally problematic circumstances confronting the State of Israel as follows:

Since the end of the month of September 2000, fierce warfare has been taking place in the regions of Judea and Samaria and the Gaza Strip. This is not a police action. This is an armed conflict . . . . A new and harsh reality has been placed before the State of Israel, which is fighting for its security and the security of its citizens.¹⁸⁸

¶ 51         The High Court of Justice, in a previous decision Kanan v. Commander of IDF Forces in Judea and Samaria, emphasized that "in the area of Judea and Samaria and the Gaza Strip actual warfare incidents have been taking place."¹⁸⁹ In Ibrahim v. Commander of IDF Forces in Judea and Samaria, another decision of the High Court, dealing specifically with the security barrier, the Court spoke of "the state of warfare which has prevailed in the Region."¹⁹⁰

¶ 52         While on the one hand, the scale and intensity of the events, particularly over the last five years, certainly justify the classification of the situation as an armed conflict¹⁹¹ as Israel Supreme Court Chief Justice Aharon Barak as well as other Supreme Court justices have vividly explained, war is classically defined as a conflict between the military apparatuses of two or more States,¹⁹² a condition which the Palestinian-Israel situation does not meet.¹⁹³ Despite this conceptual dilemma, "one may need to place antiterrorist actions within the international legal paradigm of war, rather than unbroken peace," according to Ruth Wedgwood, "with a right of ongoing offensive action against an adversary's paramilitary operations and network."¹⁹⁴ It might perhaps therefore be most suitable to classify the legal position between the Palestinians and Israel as indeed an "armed conflict," though one "short of war."¹⁹⁵ "[A]n armed conflict exists," held the International Criminal Tribunal for the Former Yugoslavia, "whenever there is a resort to armed force between States or protracted armed violence between governmental authorities and organized armed groups...."¹⁹⁶ Israel is thus "engaged in an armed conflict short of war. This is not a civilian disturbance or a demonstration or a riot. It is characterized by live-fire attacks on a significant scale.... [T]he attacks are carried out by a well-armed and organized militia...."¹⁹⁷

¶ 53         In similar fashion, U.S. President George W. Bush signed a military order two months after the horrendous September 11, 2001 suicide terrorist attacks in the United States, acknowledging that these terrible attacks were of a magnitude creating a state of armed conflict:

International terrorists, including members of al Qaida, have carried out attacks on United States diplomatic and military personnel and facilities abroad and on citizens and property within the United States on a scale that has created a state of armed conflict that requires the use of the United States Armed Forces.¹⁹⁸

¶ 54         The theatre of war, though, has changed from that of the past; now the whole world is a potential arena for conducting the war against terror. "[O]ur war on terror," declared President Bush, "will be much broader than the battlefields and beachheads of the past. This war will be fought wherever terrorists hide, or run, or plan."¹⁹⁹

¶ 55         The main connotation of a "state of armed conflict" is the applicability of the rules of armed conflict recognized as the laws of war,²⁰⁰ irrespective of whether the international armed conflicts falls short of a full-fledged war.²⁰¹ When considered in a pragmatic manner, the circumstances surrounding attacks carried out by non-State elements moreover may make little difference to the overall application of the laws of war, irrespective of the issues that arise from a theoretical standpoint.²⁰² "I think that despite the fact that the terrorists present an unconventional foe," explains Charles Allen, Deputy General Counsel for International Affairs, U.S. Department of Defense, "the fundamental principles of the law of armed conflict have proven themselves to be applicable to this conflict.... With regard to the global war on terrorism, wherever it may reach, the law of armed conflict certainly does apply."²⁰³ As Antonio Cassese consequently explains, "the body of international customary and treaty rules relating to international armed conflicts, in particular to occupatio bellica of foreign territory" is the law applicable to the hostilities between Israel and Palestinian terrorists.²⁰⁴ The same rules that apply in traditional, "battlefield" wars will be controlling in the war on terrorism, as well.²⁰⁵

¶ 56         Notwithstanding the characterization of the current conflict between Israel and Palestinian terrorists as an international armed conflict, the conflict is of a unique nature. This is not, after all, an armed conflict between two sides applying a similar set of rules to regulate their conduct. This is, rather, a conflict between the forces of a State committed to the rule of law and to the conduct of hostilities in accordance with the laws of war, and terrorist groups blatantly disregarding the most fundamental rules relating to the conduct of war.²⁰⁶ Waging this armed conflict from the midst of innocent Palestinian civilians, the terrorist organizations violate the most sacred principle of the laws of war—the principle of distinction. The terrorists violate the principle of distinction in every way possible by refusing to distinguish between combatants and non-combatants as objects of their attacks and by refusing to distinguish themselves as combatants from civilians which would avoid the unintentional harming of innocent people.

¶ 57         The unique characteristics of this conflict are further underscored by Israel Supreme Court Chief Justice Aharon Barak:

Israel's warfare is complicated. The Palestinian side uses, inter alia, "guided human bombs." These suicide bombers get to any place where there are Israelis (inside the State of Israel and in the Jewish communities in the areas of Judea and Samaria and the Gaza Strip). They sow death and destruction in cities and villages. Indeed, the forces fighting Israel are terrorists; they are not part of a regular army; they do not wear uniforms; they hide among the Palestinian civilian population in the region, including in holy places; they enjoy the support of a portion of the civilian population in general, and the support of their family members and relatives in particular.²⁰⁷

It is within this environment that Israel, like other States combating terrorism, must conduct its military operations. These unique characteristics require certain adaptations of the traditional laws of war and hence require States in the forefront of the fight against terrorism to constantly examine the rules and assumptions under which they operate and attempt to apply, as best as possible, rules originally developed for armies clashing under conditions of parity.

¶ 58         Another special characteristic of this particular type of armed conflict lies in the fact that acts of hostility are not continuously perpetrated throughout the West Bank and Gaza Strip, rather several different legal regimes exist on the ground simultaneously.²⁰⁸ In certain places an armed conflict is taking place, while in others life goes on normally. The international rules of occupation govern in some places while other places operate under the sui generis regime created by the Oslo accords.

¶ 59         Israel's actions in the West Bank²⁰⁹ vis--vis the security barrier may be examined in light of two basic sets of rules applicable to the current situation: (1) the laws of warfare and (2) the laws of belligerent occupation.²¹⁰ Following the determination that a situation of armed conflict exists, and that the body of relevant rules for the examination of the situation before us is the laws of armed conflict, jus in bello, considerations of jus ad bellum justifications for the use of force are no longer relevant. A consequence of having concluded that a situation of armed conflict already exists, as in the situation between Israel and the Palestinians, is that the question of the legality of the use force in the first place is no longer relevant.²¹¹ The law of international armed conflict does not distinguish between the civilians or the armed forces of the aggressor and those of the adversary acting in self-defense.²¹² Yet despite the focus of this Article on jus in bello, it nevertheless bears mention that to the extent that jus ad bellum would be relevant, Israel, just as any other State, is permitted to exercise its inherent right of self-defense to thwart terrorist attacks against it and its citizens and to rid itself of any threat caused by the terrorists.²¹³ The International Court of Justice itself not only recognizes Israel's right to act against terrorists but specifically holds that Israel is duty-bound to take action to protect its citizens: "The fact remains that Israel has to face numerous indiscriminate and deadly acts of violence against its civilian population.It has the right, and indeed the duty, to respond in order to protect the life of its citizens."²¹⁴

VII.    Humanitarian Concerns versus Military Necessity

¶ 60         A fundamental principle that underlies the law of armed conflict, expounds the 2004 British Manual of the Law of Armed Conflict, is military necessity, which allows a State involved in an armed conflict situation to use "that degree and kind of force, not otherwise prohibited by the law of armed conflict, that is required in order to achieve the legitimate purpose of the conflict, namely the complete or partial submission of the enemy at the earliest possible moment with the minimum expenditure of life and resources."²¹⁵ Similarly, the tribunal in the Hostages Case held that "[m]ilitary necessity permits a belligerent, subject to the laws of war, to apply any amount and kind of force to compel the complete submission of the enemy with the least possible expenditure of time, life and money."²¹⁶ Regarding "[t]he practical application of the principle of military necessity... in the context of belligerent occupation," the British law of armed conflict manual, citing the Hostages Case, elucidates that "[i]t is lawful to destroy railways, lines of communication or any other property that might be utilised by the enemy. Private homes and churches even may be destroyed if necessary for military operations."²¹⁷ At the same time, however, today's rules, founded on the Hague Conventions of 1907, deal with, among other things, regulating the use of force in wartime and what steps may be employed by an occupying State in occupied territory, as well as who may be allowed to benefit from the status of a belligerent.²¹⁸ The Hague regulations thus basically deal with the conduct of military operations.²¹⁹

¶ 61         Following World War II, the innovative Fourth Geneva Convention represented a crucial development towards protecting civilians who were not nationals of the State under whose power they found themselves due either to war or occupation. The Geneva principles were founded on the protection of civilians not actively participating in war and who should be dealt with in a humanitarian manner.²²⁰ The Geneva rules therefore essentially relate to the protection of armed conflict's victims.²²¹ The Additional Protocols to the Geneva Conventions²²² that were agreed to in 1977 essentially further expanded the existing principles.²²³

¶ 62         Generally speaking, those not taking part in actual warfare are to be distinguished from combatants.²²⁴ The Fourth Geneva Convention thus elaborates the rules to apply to protect civilians during war,²²⁵ and Protocol I recognizes the principle that military operations may be directed only against military targets. Moreover, there must be a distinction made between military targets and civilians, as well as between the combatants and the civilian population as such.²²⁶ A paramount precept of the laws of war is the principle of distinction between civilians and combatants. As the U.K. Ministry of Defence's Manual of the Law of Armed Conflict makes clear,

[t]he law of armed conflict protects members of the civilian population by making a distinction between combatants, who take part in the fighting, and non-combatants, who do not take part in the fighting and who must be shielded, as far as possible, from its effects . . . .²²⁷ So long as they do not take a direct part in hostilities, non-combatants are not legitimate targets of attack . . . .²²⁸

"Failure on the part of combatants to distinguish themselves from civilians," warns the British law of armed conflict manual, "can only result in a real risk that civilians will be mistaken for combatants."²²⁹ Thus, each of the two groups, combatants and non-combatants, "has distinct rights and duties. An individual who belongs to one class is not permitted at the same time to enjoy the privileges of the other class."²³⁰ The purpose of this fundamental distinction, explains Yoram Dinstein, "is to ensure in every feasible manner that international armed conflicts be waged solely among the combatants of the belligerent Parties. Lawful combatants can attack enemy combatants or military objectives, causing death, injury and destruction."²³¹ In fact, all combatants can be lawfully targeted. This includes all members of the armed forces, whether or not they are actually engaged in combat."²³² As Michael Schmitt explains, "the general directing operations miles from battle is as valid a target as the commander leading his troops into combat."²³³ Once one is a combatant, "the law of war clearly permit[s] targeting him."²³⁴ Thus, "lawful targeting in wartime has never required that the individual actually be engaged in combat."²³⁵ Two instances from World War II, both occurring in 1943, will suffice to illustrate this. In an attempt to capture or kill Field Marshal Rommel, the British conducted a commando raid at Beda Littoria,²³⁶ and Admiral Isoroku Yamamoto, the Japanese fleet's commander-in-chief, was killed in the crash of an airplane when it was ambushed and downed by American P-38's.²³⁷

In contrast, civilians are not allowed to participate actively in the fighting; if they do, they lose their status as civilians . . . .²³⁸ [A] person cannot (and is not allowed to) be both a combatant and a civilian at the same time, nor can he constantly shift from one status to the other . . . . [O]ne cannot fight the enemy and remain a civilian . . . .²³⁹

Anyone who claims the privileges of the laws of war "must himself respect the laws from which he proposes to benefit."²⁴⁰

¶ 63         "[I]nternational law in general and the law of armed conflict in particular recognize that individuals who directly take part in hostilities cannot claim immunity from attack or protection as innocent civilians."²⁴¹ Accordingly, individuals who become combatants are deemed to continue being combatants until the end to the hostilities and not merely during that exact instant when they are organizing, instigating, or executing an attack. They are therefore considered legitimate military targets both while planning attacks as well as after they have been perpetrated.²⁴²

¶ 64         In fact, a State engaged in legitimate defensive actions against illegal combatants involved in an ongoing sequence of terrorist acts against a State and/or its inhabitants (acts of terror by these illegal combatants which could be considered in and of themselves as crimes against humanity, crimes against the peace and security of mankind, or arguably even war-crimes against the attacked State and its inhabitants), could not logically be subject to greater legal restrictions on its scope of action than would be applicable if the State were engaged in legitimate defensive actions against legal combatants of an army of a foreign hostile State. Any other conclusion would mean that terrorists as illegal combatants could hold a better status or enjoy greater immunities than would be the case if they were part of an army of another State and fighting as legal combatants in a war against the first State.

¶ 65         The two branches of the law applicable to armed conflict situations, the "Hague law" and the "Geneva law," now "have become so closely interrelated," opined the International Court of Justice in 1996, "that they are considered to have gradually formed one single complex system, known today as international humanitarian law."²⁴³

¶ 66         It is through these laws of war that the international community consequently endeavors to bring some measure of order to the conduct of hostilities between States.²⁴⁴ By imposing rules that require participants to carry out hostilities in a humane fashion and protect the victims of war during the course of conflict, the international law of armed conflict attempts to preserve a fine and sensitive balance between humanitarian concerns and military necessity.²⁴⁵ Thus, in striving to attain military advantage, the amount of suffering that is necessarily incurred as a result must not be disproportionate.²⁴⁶ "The conduct of armed hostilities on land is regulated by the law of land warfare," explains the U.S. Army Field Manual No. FM27-10 of The Law of Land Warfare , and "is inspired by the desire to diminish the evils of war by... [p]rotecting both combatants and noncombatants from unnecessary suffering;" by "[s]afeguarding certain fundamental human rights of persons who fall into the hands of the enemy, particularly prisoners of war, the wounded and sick, and civilians;" and by "[f]acilitating the restoration of peace."²⁴⁷ As the British military manual points out, "[t]he law of armed conflict is consistent with the economic and efficient use of force. It is intended to minimize the suffering caused by armed conflict rather than impede military efficiency."²⁴⁸

¶ 67         Specifically regarding occupied territory, Gerhard von Glahn points out that "[i]n view of the fact that the occupant exercises administrative control in the territory under his authority and... is obliged to restore public order and safety as far as possible, it appears that the occupied territory should be administered not only in the (military and other) interests of the occupant, but also to the greatest possible extent for the good of the native inhabitants."²⁴⁹

¶ 68         Nevertheless, "if benevolent humanitarianism were the only beacon to guide the path of armed forces, war would have entailed no bloodshed, no destruction and no human suffering; in short, war would not have been war."²⁵⁰ Though on the other hand, "[i]f military necessity were to prevail completely, no limitation of any kind would have been imposed on the freedom of action of belligerent States ...."²⁵¹ In reality, the law of international armed conflict "takes a middle road, allowing belligerent States much leeway (in keeping with the demands of military necessity) and yet circumscribing their freedom of action (in the name of humanitarianism)."²⁵² In essence, "[t]he laws of war," elucidates Yoram Dinstein,

are all based on a subtle balance between two opposing considerations: military necessity, on the one hand, and humanitarian sentiments, on the other. . . . Each one of the laws of war discloses a balance between military necessity and humanitarian sentiments, as produced by the framers of international conventions or as crystallized in the practice of States. The equilibrium may be imperfect, but it is legally binding in the very form that it is constructed.²⁵³

The laws of war have thus in effect created a delicate equilibrium between two parameters: humanitarian principles and military necessity. Yet, while the freedom of action of the belligerents is restricted, they nevertheless retain a great deal of latitude in the conduct of their military activities. According to Dinstein:

It is possible to say that the whole purpose of the laws of warfare—to use the language of the 1868 St. Petersburg Declaration—is "alleviating as much as possible the calamities of war." The thrust of the concept is not absolute mitigation of the calamities of war, but relief from tribulations of war "as much as possible," meaning as much as possible considering the fundamental interest of each belligerent to win the war.²⁵⁴

As D.W. Greig explains:

Somewhere there has to be a compromise between humanitarian ideals and the realities of the demands of a war situation. As the preamble to the 1907 [Hague] Convention put it, the wording of the provisions contained therein was "inspired by the desire to diminish the evils of war, as far as military requirements permit."²⁵⁵

¶ 69         "[I]t is important to keep constantly in mind the sobering thought," writes Yoram Dinstein,

that wars are fought to be won . . . . Almost by definition, [war] entails human losses, suffering and pain. As long as it is waged, humanitarian considerations cannot be the sole legal arbiters of the conduct of hostilities. The law of international armed conflict can and does forbid some modes of behaviour, with a view to minimizing the losses, the suffering and the pain. But it can do so only when there are realistic alternatives to achieving the military goal of victory in war. Should nothing be theoretically permissible to a belligerent engaged in war, ultimately everything will be permitted in practice - because the rules will be ignored.²⁵⁶

¶ 70         Armed conflict rules are thus "predicated on a subtle equilibrium between two diametrically opposed impulses: military necessity and humanitarian considerations," explains Dinstein. Each armed conflict law norm

confronts a built-in tension between the relentless demands of military necessity and humanitarian considerations, working out a compromise formula. The outlines of the compromise vary from one [law of international armed conflict] norm to another. Still, in general terms, it can be stated categorically that no part of [the law of international armed conflict] overlooks military requirements, just as no part of [the law of international armed conflict] loses sight of humanitarian considerations. All segments of this body of law are stimulated by a realistic (as distinct from a purely idealistic) approach to armed conflict.²⁵⁷

¶ 71         The thrust behind the law of war's prevailing guideline of "alleviating as much as possible the calamities of war" is thus "not absolute mitigation of the calamities of war (which would be utterly impractical), but relief from the tribulations of war 'as much as possible'; that is to say, as much as possible considering that war is prosecuted for military ends, and the ascendant objective of each belligerent State is to win the war."²⁵⁸ In other words, the laws of war strive to strike a compromise between military necessity and humanitarian considerations,²⁵⁹ taking into account of course that "[a] belligerent is entitled to do whatever is dictated by military necessity in order to win the war, provided that the act does not exceed the bounds of legitimacy" in accordance with the law of international armed conflict.²⁶⁰

¶ 72         But exactly how is "military necessity" to be determined? Military necessity during war can mean necessary acts undertaken to directly support particular military actions or actions the cumulative effect of which is destruction of the war-making capacity of the enemy, which consequently draw the war to a close more quickly. "The first and most dominant" of the basic, fundamental principles according to which war is to be conducted and the means which can be used to conduct it is "the principle of military necessity," writes Morris Greenspan. "That is, the right to apply that amount and kind of force that is necessary to compel the submission of the enemy with the least possible expenditure of time, life, and money."²⁶¹ As defined in the U.S. Army Field Manual No. FM27-10 on The Law of Land Warfare, "military necessity" means "that principle which justifies those measures not forbidden by international law which are indispensable for securing the complete submission of the enemy as soon as possible."²⁶² In similar fashion, according to both the 2004 British law of armed conflict manual²⁶³ and the Hostages Case,²⁶⁴ as mentioned earlier, a State engaged in armed conflict is permitted to use "that degree and kind of force, not otherwise prohibited by the law of armed conflict, that is required in order to achieve the legitimate purpose of the conflict, namely the complete or partial submission of the enemy at the earliest possible moment with the minimum expenditure of life and resources."²⁶⁵

¶ 73         Quite understandably, explains Greenspan, "'[t]he question in what circumstances a necessity arises cannot be decided by any hard-and-fast rule.'"²⁶⁶ Although some have contended, for example, that in an armed conflict situation, a State may use force "necessary for the achievement of the goals of that state,"²⁶⁷ perhaps the most sound explanation of "military necessity" during armed conflict situations is indeed that of Greenspan:

In judging actions of destruction and seizure of property committed under a plea of military necessity, a fair standard to be applied in assessing their justifiability would be that of their reasonableness. In other words, would a reasonably prudent commander acting in compliance with the laws of war have authorized such destruction or seizure under similar circumstances. In applying such a test due latitude should be allowed for the stress under which men make their decisions in conducting military operations, and they should be judged according to the conditions under which they operated, rather than whether they would have made the same decision looking back on the matter from the unhurried calm of court-room proceedings. Wanton destruction and seizure may be distinguished from that which is necessary by the gross disparity between the extent of the destruction and seizure and any valid reason for it.²⁶⁸

¶ 74         As the tribunal in the Hostages Case ruled, "[t]he destruction of property to be lawful must be imperatively demanded by the necessities of war. Destruction as an end in itself is a violation of International Law. There must be some reasonable connection between the destruction of property and the overcoming of the enemy forces."²⁶⁹

¶ 75         For an occupying power, the primary consideration, according to von Glahn, "is the prosecution of the war to a successful conclusion."²⁷⁰ As he points out, however, in the typical occupation scenario the military necessity in an area being administered by an occupying power is likely to be somewhat different than military necessity during actual combat:

[F]ew if any of the measures likely to be undertaken by occupation authorities in enemy territory will reasonably contribute decisively to the end of the conflict, to the surrender of the enemy, or will be invested with supremely vital character . . . . It must be remembered that practically all measures of real importance undertaken by an occupant in hostile territory fall in a period of time when the military phase of active hostilities has passed from the occupied territory . . . .²⁷¹

¶ 76         The circumstances that Israel faces, however, are far from the typical occupation scenario, with thousands of Israeli casualties to bear witness to this uncharacteristic occupation situation. Von Glahn consequently concludes that the occupation authorities' judgment as to whether a case of military necessity exists that would justify the commission of certain acts otherwise forbidden,²⁷² "has to be measured against the known facts and, if at all possible, against any evidence that there existed an honest conviction to the effect that necessity proper existed."²⁷³ As von Glahn makes clear, if it can be demonstrated that "an urgent need" impelled an action whereby a rule qualified by necessity had to be set aside and "the breach of the rule was accomplished, not by rash individual action, but under some form of supervised regulation or administration, then the plea of necessity would normally be upheld as valid."²⁷⁴

¶ 77         In other words, where international humanitarian law expressly provides for engaging in prescribed behavior due to military necessity, these actions are permissible.²⁷⁵ Such an allowance for reasons of military necessity constitutes an integral part of international humanitarian law in armed conflict situations and reflects an intentional balance between humanitarian principles and the demands incumbent in war in the form of military necessity.²⁷⁶ Although normal life of the occupied area's inhabitants must be ensured to the extent possible, the rights and obligations of an occupied territory's military regime must be characterized by its own needs as well.²⁷⁷

¶ 78         Article 43 of the Hague Regulations stipulates that "the occupant... shall take all the measures in his power to restore, and ensure, as far as possible, public order and safety . . . ."²⁷⁸ Certainly the duty to ensure public order and safety includes the maintenance of an orderly administration that embraces security,²⁷⁹ and military necessity can be a legitimate consideration for an occupying power's endeavors in occupied territory.²⁸⁰ It is consequently not possible to divorce the purposes of the war from military necessity that, as a matter of course, may include defending the citizens of the occupying State. The occupying authority, especially in a situation of ongoing belligerency, is responsible for precluding within the occupied area imminent dangers not only to the occupied region but also to the occupying power as well. The military facet is then actually one and the same as the facet of security. As Justice Witkon held in the Israel High Court of Justice case Ayoub v. Minister of Defense regarding seizing land in occupied territory:

[T]he existing situation is one of belligerency, and the occupying power has the responsibility to ensure order and security in the occupied territory. It must also meet the dangers posed from such territory to the occupied territory itself and to the State itself. The warfare these days has taken the form of acts of terror, and even one who views these acts (which harm innocent civilians) as a form of guerilla war, will admit that the occupying power is authorized and even obligated to take all the necessary measures to prevent them. The military aspect and the security aspect are only therefore a single aspect. ²⁸¹

¶ 79         In other words, military necessity may include the occupant's actions, undertaken in occupied territory, designed to have a defensive effect beyond it and applied to the occupying State's territory.²⁸² "'The occupation of a foreign territory does not represent an end in itself,'" comments Ernst Fraenkel, citing the remarks of one observer following World War I; "'its end is the realization or the protection of certain public interests; it is an act of sovereignty. The occupying power makes use of its army, which is nothing else but its executive agent, in order to exercise its sovereignty and to realize and protect its interests.'"²⁸³ In referring specifically to the granting to military tribunals jurisdiction in all matters touching on the occupying army's security, the same observer, again cited by Fraenkel, emphasizes that this was "'intended to protect not only the army itself but also the state of which it is the executive agent, and that state's sovereignty and independence.'"²⁸⁴

¶ 80         It had become excruciatingly and painfully obvious that in order to protect Israel and Israelis against terrorist attacks, and particularly against suicide terrorism, a barrier was necessary between most of the territory's Palestinian residents and most Israelis. The Israel government's Ministerial Committee for National Security Matters therefore decided to construct a security barrier for "'improving and strengthening the operational capabilities and preparedness in the framework of contending with terrorism, and in order to foil, disrupt and prevent the infiltration of terror activities from the area of Judea and Samaria to Israel.'"²⁸⁵ The Israel government subsequently approved this decision.²⁸⁶

¶ 81         "For practical purposes," explains Greenspan,

a military occupation may be divided into two phases. The first is the combat or wake-of-battle phase, which begins as soon as the area comes into control of the occupying or liberating force . . . . The second, or occupational, phase occurs when the tide of battle has receded well beyond the occupied territory, conditions there are fairly well settled, and administration becomes the main problem rather than battle.²⁸⁷

Typically, then, belligerent occupation is a stage of the general hostilities that reflects the fact that the phase of intense warfare is over and has finished in the belligerently occupied territory.²⁸⁸ This is "a period of time when the military phase of active hostilities has passed from the occupied territory and when the occupant attempts to establish an orderly administration," explains von Glahn.²⁸⁹ "In positive terms, and broadly stated," writes Julius Stone, "the Occupant's powers are . . . to continue orderly government . . . [and] to exercise control over and utilize the resources of the country so far as necessary for that purpose and to meet his own military needs."²⁹⁰ What in essence occurs, clarifies Oppenheim, is that "the legitimate Government is prevented from exercising its authority," and it is therefore the occupying power that "actually exercises" it.²⁹¹ The occupant accordingly "acquires a temporary right of administration over the territory and its inhabitants . . . ."²⁹² Article 43 of the Hague Regulations provides the foundation for this power and responsibility, prescribing that the occupying power "shall take all the measures in his power to restore, and ensure, as far as possible, public order and safety . . . ."²⁹³ The 2004 Manual of the Law of Armed Conflict of the United Kingdom repeats this prescription in almost identical fashion²⁹⁴ and then continues and explains that the occupying authority moreover "is responsible for the orderly government of the territory."²⁹⁵ Thus as a practical result "[w]here hostile territory is occupied," elucidates Morris Greenspan,

all functions of the enemy government—legislative, executive, or administrative; general, provincial, or local—cease, or continue only with the sanction, express or implied, of the occupant. In their place the invader sets up his own administration. No matter what name he applies to his government, whether it is termed military or civil, the circumstances in which it arose alone determine its true nature and as a military occupant he is bound by the relevant rules of international law.²⁹⁶

¶ 82         Accordingly, when Israel entered the disputed territories in 1967, international law obligated it to assume and execute all the tasks of an administrative nature that Jordan was unable to fulfill, as Israel was the authority in actual control of the territory. Yet, writes Oppenheim:

[T]he administration of the occupant is in no wise [sic] to be compared with ordinary administration, for it is distinctly and precisely military administration. In carrying it out the occupant is totally independent of the constitution and the laws of the territory, since occupation is an aim of warfare, and the maintenance and safety of his forces and the purpose of war, stand in the foreground of his interest, and must be promoted under all circumstances and conditions . . . . [A]s regards the safety of his army and the purpose of war the occupant is vested with an almost absolute power . . . . [H]e must ensure public order and safety . . . .²⁹⁷

¶ 83         To illustrate this aspect of military administration it may be instructive to turn to the World War II U.S. administration in Germany. In April 1945 the Combined Joint Chiefs of Staff issued a directive to the Commanding General of the United States occupation forces in Germany, General Dwight Eisenhower, to guide him concerning the legal obligations and rights of the administration of military government of the United States in occupied Germany. The directive stipulated, among other things, that

you are, by virtue of your position, clothed with supreme legislative, executive, and judicial authority in the areas occupied by forces under your command. This authority will be broadly construed and includes authority to take all measures deemed by you necessary, appropriate or desirable in relation to military exigencies and the objectives of a firm military government.²⁹⁸

¶ 84         As a matter of fact, "a decision had been reached at the highest Allied levels (Yalta Conference)," von Glahn points out, "that the occupying powers would have authority greater than the traditional 'military occupant' possessed," and the anticipated length of Allied occupation of Germany was at the time "always discussed in terms of decades." ²⁹⁹

¶ 85         Listed among the basic objectives of military government in occupied Germany was the directive that

The principal Allied objective is to prevent Germany from ever again becoming a threat to the peace of the world. Essential steps in the accomplishment of this objective are the elimination of Nazism and militarism in all their forms, the immediate apprehension of war criminals for punishment, the industrial disarmament and demilitarization of Germany, with continuing control over Germany's capacity to make war, and the preparation for an eventual reconstruction of German political life on a democratic basis.³⁰⁰

Parenthetically, the Japanese surrender instruments and the July 26, 1945 Potsdam Proclamation also granted the Allies occupation powers beyond those of the Hague Regulations.³⁰¹

¶ 86         Israel's assumption of Jordan's former responsibilities, obligations, and authority was thus pursuant to the requirements of international law, which bestows on the occupant the competence to manage the occupied area in place of the previous administration so as to avert vacuity in public order maintenance and in the effective management of daily life in the occupied area. As former Chief Justice of the Israel Supreme Court Meir Shamgar opines, "[t]he first and foremost aim of the Israel Military Government" in the territories that came under the control of Israel as the result of actions engaged in self-defense during a war waged against it by Arab States in June 1967

was the restoration and maintenance of public order and safety . . . . The entry of Israeli military forces into the areas under consideration accorded to them the right and duty to establish an orderly and just administration. This was not regarded merely as an aim of warfare, or as a means for the maintenance and safety of the military forces, but as the consequence of their duty to be guided in every situation, including military administration, by the rule of law . . . .³⁰²

Chief Justice Shamgar continues and explains that

[t]he establishment of military government was the direct result of the armed conflict and of the entry of Israeli armed forces into areas in which the former governments, whatever their legal standing, were prevented from exercising their authority. According to International Law the exercise of the right of military administration over the territory and its inhabitants had no time-limit, because it reflected a factual situation and pending an alternative political or military solution this system of government could, from the legal point of view, continue indefinitely.³⁰³

¶ 87         The humanitarian and military necessity considerations and ramifications during belligerent occupation are typically considered to be different from those during battle, as usually actual combat has either moved on to other places or has ended altogether.³⁰⁴ However, belligerent occupation is in essence but "a phase of war as yet undecided," writes von Glahn, and is "a temporary phenomenon, subject to the changing fortunes of the conflict...."³⁰⁵ It is a "precarious" phenomenon, explains Feilchenfeld, in that international law takes "cognizance of that kind of precariousness which results from the fact that a war is still going on . . .. The territorial change of belligerent occupation... is treated as precarious as long as the war continues."³⁰⁶ A fluid, uncertain situation can exist, vacillating between all-out war and the relative calm of administration of occupied territory.³⁰⁷ Because "any part of a territory controlled by a belligerent is a potential fighting zone," concludes Georg Schwarzenberger, "the distinction between fighting zones, occupied enemy territories and unoccupied territories of belligerents is becoming increasingly blurred, and all these areas tend to merge into potential fighting zones."³⁰⁸ Following World War I's armistice of November 11, 1918, during the Allied occupation of the Rhineland, for instance, the Allies undertook various military measures in the occupied territory in anticipation that the war might erupt again.³⁰⁹ One observer in fact termed the Rhineland occupation as a "continuing war."³¹⁰ Consequently, even during a period of relative calm in occupied territories, military operations, taken in anticipation of the threat of terrorism, may be necessary at times, thereby blurring the distinction between the occupying power's authority during active warfare and its powers in calm periods.³¹¹ Not only during actual warfare is military necessity of vital importance; it may be crucial also in occupied territory in order to pre-empt material danger.³¹²

¶ 88         The Combined Joint Chiefs of Staff thus, for example, specifically authorized a very broad implementation of military necessity in an occupation setting when they issued a directive in April 1945 to General Dwight Eisenhower, it will be recalled, to assist him with respect to the legal rights and obligations concerning the United States' military government administration in occupied Germany. The directive, in considering the basis of military government, dictated, to reiterate, that General Eisenhower was due to his position vested "with supreme legislative, executive, and judicial authority in the areas occupied by forces under [his] command" and that this authority was to "be broadly construed and includes authority to take all measures deemed by [him] necessary, appropriate or desirable in relation to military exigencies and the objectives of a firm military government."³¹³

¶ 89         Over 22,400 terrorist attacks have been carried out against Israelis over the past five years.³¹⁴ These attacks, executed by suicide bombings, mortars, missiles, car bombs, machine guns, hand grenades, mines, petrol bombs, and rockets on villages, towns, and cities, as well as countless shooting incidents, have inflicted well over 8600 casualties, killing more than 1070 people since September 2000.³¹⁵This situation, as explained earlier, has created a legal position that might best be categorized as an "armed conflict short of war."³¹⁶ As a result, it would be difficult to contend that the basic premise of belligerent occupation is always present in the disputed territories—that of the termination of intense combat in the belligerently occupied territory.³¹⁷ The attacks that Palestinian terrorists, operating from within the disputed territories, have been carrying out against Israel and Israelis are of such an extent and magnitude for Israel that their scale renders them to be tantamount to the September 11, 2001, attacks on the United States, that, according to President Bush "created a state of armed conflict that requires the use of the United States Armed Forces."³¹⁸ To be more exact, in light of the number of casualties that Israel has suffered from terrorist attacks over the last five years, relative to its populaton, it actually would be as if "September 11, 2001" had occurred a total of some 104 times against Israel and Israelis since the year 2000.

¶ 90         The military situation of Israel in the disputed territories could thus be compared to that confronting the coalition forces in Iraq in the sense that "a state of armed conflict and a state of occupation"³¹⁹ concomitantly exist. Consequently, the laws of warfare and of belligerent occupation are concurrently applicable. As Col. Marc Warren, staff judge advocate for Combined Joint Task Force 7, the U.S. military operation in Iraq, explained in August 2003, "[o]ur soldiers are conducting combat operations" and they "are still engaged in combat operations,"³²⁰ notwithstanding President George W. Bush's declaration more than three months earlier, on May 1, 2003, that major combat operations in Iraq were over. Hostilities have not yet ceased, points out Col. Warren.³²¹ As for "the Israeli/Palestinian conflict," explains Kenneth Watkins, "it is widely recognized that international humanitarian law applies in the occupied territories. As a result, in addition to the provisions protecting persons in occupied territories found in the 1907 Hague Regulations and the Fourth Geneva Convention, the rules on the methods and means of warfare will be applicable. International humanitarian law would therefore govern the use of force relating to the conduct of hostilities."³²² B.D. Tittemore further elucidates this concurrent application of international norms relevant to both a state of occupation as well as a state of armed conflict: "An occupation of the territory of one state by the armed forces of another also triggers the rules of international armed conflict, as well as specific rules regarding the administration of an occupied territory by an occupier."³²³

VIII.    Property and its Seizure and Destruction

¶ 91         It is regrettable that military operations during a war will most certainly be accompanied by the seizure and destruction of both private as well as public property. Though as Georg Schwarzenberger writes, "to expect property in occupied countries to enjoy the same protection as foreign nationals are entitled to claim in time of peace would impose more severe restrictions on a belligerent occupant than wartime circumstances make feasible."³²⁴ The provisions in the Hague Regulations regarding seizure and requisition of private property, continues Schwarzenberger,

are evidence of a desire to assimilate requisition and seizure of private property in occupied territories to expropriation in time of peace. In the nature of things, even the Hague Regulations fall short of peacetime requirements. They are, however, intended to approximate to these standards at least as far as wartime circumstances permit.³²⁵

Consequently, he concludes, "requisition and seizure under the law of belligerent occupation may be viewed as the counterparts to lawful expropriation under the law of peace."³²⁶

¶ 92         "The guiding principle governing the treatment of enemy property in warfare," explains Greenspan, is "stated in Article 23... of the Hague Regulations ...which forbids the destruction or seizure of enemy property, except where 'imperatively demanded by the necessities of war.'"³²⁷ Hence, explains Greenspan, "[w]here the operations of war render it imperatively necessary, enemy property, public or private, may be seized or destroyed."³²⁸ He continues to elucidate further concerning the permissible seizure or destruction of enemy property when "imperatively demanded by the necessities of war":

The imperative necessities of military operations justify the use or damage of enemy private property, real or personal, and neither rent for its use nor compensation for its damage may be claimed . . . . Buildings, fences, woods, and crops may be demolished, cut down or removed to clear a field of fire, to provide material for the construction of bridges and other military works, or to furnish fuel, where required by imperative military necessity.³²⁹

¶ 93         In the language of paragraph 11.78 of the 2004 Manual of the Law of Armed Conflict of the United Kingdom,

[l]and and buildings may be used temporarily for the needs of the occupying power, even if that use impairs its value. Military use would include, for example, use for . . . construction of defensive positions . . . . If necessary, houses, fences, and woods may be cleared to open up a field of fire or the materials used for bridges, roads, or fuel imperatively needed by the occupying forces. The owner of property used in this way may claim neither rent nor compensation . . . .³³⁰

¶ 94         Discussing specifically the necessity required to justify the destruction or seizure of property under Article 23(g) of the Hague Regulations, von Glahn points out that "the necessity has to be very urgent and vital."³³¹ Within the context of the armed conflict between Palestinians and Israel, a security barrier, though it entails the seizure or destruction of some property in the course of its construction, clearly is "very urgent and vital" to the security of Israel and the safety of its citizens, a necessity which thereby justifies property seizure or destruction for this purpose. "[A] real emergency," to borrow the words of von Glahn, has forced "an occupant to destroy public or private property."³³² In this particular instance of building a security barrier, and under the circumstances of incessant terror attack against Israel and Israelis, "destruction of property is legitimate" because, to again borrow from von Glahn, "the evidence shows that necessity existed logically under then prevailing conditions."³³³

¶ 95         Beyond its clear application in those instances "where imperatively demanded by the necessities of war," Article 23(g) is also considered by scholars to be applicable "directly to all territories under a belligerent's control or, at least, to fighting zones and occupied territories."³³⁴ The authoritative and internationally acclaimed commentator on the Geneva Conventions, Jean Pictet, for instance, concludes that since Article 23(g) "is placed in the section [of the Hague Regulations] entitled 'hostilities', it covers all property in the territory involved in a war...."³³⁵ This article is therefore indeed relevant when it comes to considering the legality of seizing land in occupied territory.³³⁶ Hence, explains Georg Schwarzenberger, "a case... can be made for the direct application of Article 23(g) to all territories under the control of belligerents."³³⁷ If the rule contained in Article 23(g) of the Hague Regulations "applies directly to fighting zones alone," he continues, "it can be legitimately extended by analogy to occupied territories."³³⁸ Schwarzenberger elaborates:

[A]ny part of a territory controlled by a belligerent is a potential fighting zone. Thus, contrary to the typical situation as it existed in 1899 and 1907, the distinction between fighting zones, occupied enemy territories and unoccupied territories of belligerents is becoming increasingly blurred, and all these areas tend to merge into potential fighting zones.³³⁹

¶ 96         Article 23(g) may thus be regarded as being applicable not only during actual combat but within occupied territory as well as in times of suppressing hostile activities.³⁴⁰ Consequently, as the British Manual of Military Law concludes, Article 23(g) "applies to both occupied and unoccupied territory."³⁴¹

¶ 97         Specifically concerning the destruction of enemy property in occupied territory, though, Article 53 of the Fourth Geneva Convention permits occupying forces to carry out such destruction of property situated in occupied territory if "rendered absolutely necessary by military operations."³⁴² The U.S. Army Field Manual on The Law of Land Warfare reiterates this rule in a similar fashion,³⁴³ as does the 2004 British Manual of the Law of Armed Conflict.³⁴⁴

¶ 98         Article 53 of the Fourth Geneva Convention thus reinforces the rule embodied in Article 23(g) of the Hague Regulations,³⁴⁵ thereby making Article 53 in essence a rewording of the rule expressed in Article 23(g) of the Hague Regulations. Article 53, explains Greenspan, "is, in effect, a restatement, with particular reference to occupied territories, of the general principle contained in Article 23(g) of the Hague Regulations, 1907, which is applicable to warfare in all its aspects"³⁴⁶ and allows the seizure as well as the destruction of enemy property when "imperatively demanded by the necessities of war."³⁴⁷ Moreover, according to Schwarzenberger, "Article 53 must be read together with the general reservations contained in Article 64(2)"—that is, Article 53 must be read together with the following: the occupying authority may

subject the population of the occupied territory to [penal] provisions which are essential to enable the Occupying Power to fulfill its obligations under the present Convention, to maintain the orderly government of the territory, and to ensure the security of the Occupying Power, of the members and property of the occupying forces or administration"³⁴⁸

—with the result being that "the exception clause in Article 53 is less narrow than, on the surface, appears,"³⁴⁹ points out Schwarzenberger. In fact, as the tribunal in the Hostages Case held, military necessity generally "sanctions measures by an occupant necessary to protect the safety of his forces and to facilitate the success of his operations." ³⁵⁰

¶ 99         It will be pertinent to recall at this point that, as Greenspan writes, "'[t]he question in what circumstances a necessity arises cannot be decided by any hard-and-fast rule.'"³⁵¹ In order to determine if indeed the destruction was permissible, he continues, "[t]he situation should be judged as it appeared at the time to the commander who made the decision, and not as the facts are viewed in retrospect."³⁵² Pictet, as well, explains that "it will be for the Occupying Power to judge the importance of such military requirements" as will justify the destruction of private or public property in occupied territory:

The prohibition of destruction of property situated in occupied territory is subject to an important reservation: it does not apply in cases "where such destruction is rendered absolutely necessary by military operations." The occupying forces may therefore undertake the total or partial destruction of certain private or public property in the occupied territory when imperative military requirements so demand. Furthermore, it will be for the Occupying Power to judge the importance of such military requirements. . . . The Occupying Power must . . . try to interpret the clause in a reasonable manner: whenever it is felt essential to resort to destruction, the occupying authorities must try to keep a sense of proportion in comparing the military advantages to be gained with the damage done.³⁵³

¶ 100         Pictet further elucidates that post-World War II courts held admissible in specific instances tactics that included "recourse to a 'scorched earth' policy, i.e. the systematic destruction of whole areas by occupying forces withdrawing before the enemy," when required by military considerations and "carried out in exceptional circumstances purely for legitimate military reasons." These same court decisions, though, rebuked "wanton destruction" or "extensive destruction" and "severely condemned recourse to measures of general devastation whenever they were wanton, excessive or not warranted by military operations." ³⁵⁴ As Pictet explains:

Article 6(b) of the Charter of the International Military Tribunal describes "the wanton destruction of cities, towns or villages or devastation not justified by military necessity" as a war crime. Moreover, Article 147 of the Fourth Convention includes among the "grave breaches" liable to penal sanctions under Article 146, "extensive destruction . . . of property, not justified by military necessity and carried out unlawfully and wantonly."³⁵⁵

¶ 101         Consequently, concludes Greenspan, "among the war crimes defined by Art. 6(b) of the Charter of the International Military Tribunal, 1945, is 'devastation not justified by military necessity,' which obviously implies that devastation is justified by military necessity."³⁵⁶ The Hostages Case in fact actually held that a general devastation could indeed be justified by urgent military necessity.³⁵⁷

¶ 102         Thus, "[t]he accepted opinion appears to be that, 'general devastation of enemy territory is, as a rule, absolutely prohibited, and only permitted very exceptionally, when "it is imperatively demanded by the necessities of war" [Hague Regulations, 23 (g)] [sic].'"³⁵⁸ Furthermore, in detailing the rights the occupying power has to dispose of private and public property,³⁵⁹ Pictet notes:

[T]he prohibition only refers to "destruction." Under international law the occupying authorities have a recognized right, under certain circumstances, to dispose of property within the occupied territory—namely the right to requisition private property . . . and the right to administer and enjoy the use of real property belonging to the occupied State.³⁶⁰

¶ 103         Article 46 of the Hague Regulations indeed stipulates that "private property... must be respected" and "cannot be confiscated."³⁶¹ Yet, this article is also subject to rules of international law enabling the occupying power, for reasons either of public welfare or military necessity, to make use of private property or to limit the owners' use of it. Accordingly, an exception under Article 46 is the expropriation of privately owned land, according to local law procedures, to meet public needs. "During an occupation," Feilchenfeld points out, "the occupant's right and duty to maintain public order and safety may involve expropriation. As measures for the benefit of the occupied country they differ, of course, from requisitions."³⁶² He explains that Article 46's rule against prohibiting the confiscation of private property does not afford protection "against losses incurred through lawful requisitions, contributions, seizures... and expropriation."³⁶³ Thus, although Paragraph 406 of the U.S. Army Field Manual The Law of Land Warfare indicates in identical fashion as the Hague Regulations' Article 46 that "[p]rivate property cannot be confiscated,"³⁶⁴ and the subsequent Paragraph 407 stipulates that "[i]mmovable private enemy property may under no circumstances be seized,"³⁶⁵ that same Paragraph 407 also provides that enemy property "may, however, be requisitioned...."³⁶⁶ As the United Kingdom's 2004 Manual of the Law of Armed Conflict explains, "[t]he requirement to respect private property is subject to conditions necessitated by armed conflict. For example, military operations inevitably cause damage to private property and occupying forces are entitled to requisition property for necessary military purposes."³⁶⁷ Oppenheim explains:

Article 46 of the Hague Regulations expressly enacts that "private property may not be confiscated." But confiscation differs from the temporary use of private land and buildings for all kinds of purposes demanded by the necessities of war. What has been said above with regard to utilisation of public buildings applies equally to private buildings. If necessary, they may be converted into hospitals, barracks, and stables without compensation for the proprietors, and they may also be converted into fortifications.³⁶⁸

¶ 104         As the Romanian-German Mixed Arbitral Tribunal decided in Goldenberg & Sons v. Germany, "military requisition is a form sui generis of expropriation for purposes of public utility. The latter is an accepted exception to the principle of the respect for private property. It is the same with requisition...."³⁶⁹ Thus, explains Greenspan, although absolute confiscation is at all times forbidden, the obligation to show consideration for private property may not hamper various military operations regarding it, nor the requisitioning of various private property.³⁷⁰ Privately-owned land may temporarily be utilized for objectives necessitated by the demands of war, notwithstanding that the property may be damaged or its value lowered due to this use. The owners may claim neither reimbursement for any damage that has accrued thereby or rent for its use.³⁷¹ Nevertheless, Israel has offered to pay Palestinian landowners whose property is required for the security barrier a base fee and a yearly sum for requisitioning their property.³⁷²

¶ 105         Article 43 of the Hague Regulations³⁷³ also allows for the expropriation of property for the objective of preserving and maintaining public order and safety.³⁷⁴ An occupier in fact is actually required under Article 43 of the Hague Regulations to "take all the measures" in its power to "ensure, as far as possible, public order and safety,"³⁷⁵ and seizure of property undoubtedly could be included among these measures.³⁷⁶

¶ 106         Article 52 of the Hague Regulations provides that requisitions may be demanded from inhabitants for the needs of the occupation forces.³⁷⁷ "Requisition may... be described as an act of State," writes Schwarzenberger, "authorised on conditions laid down by international law, by which a belligerent occupant may deprive a private person or local authority of ownership in movables and possession in immovables."³⁷⁸ Because "the wording of Article 52," he points out, "is sufficiently wide to include immovables,"³⁷⁹ clearly "a belligerent occupant may deprive a private person or local authority of . . . possession in immovables."³⁸⁰

¶ 107         Von Glahn, as well, explains that temporary use of land is permissible when there is military necessity for it: "Under normal circumstances an occupant may not appropriate or seize on a permanent basis any immovable private property, but on the other hand a temporary use of land and buildings for various purposes appears permissible under a plea of military necessity."³⁸¹ Undoubtedly, then, a security barrier would be one of the "various purposes" permitted for the "military necessity" of defending Israel and Israelis against deadly terrorist attacks. "Land and buildings may be used temporarily for the needs of the occupying power," explains Paragraph 11.78 of the 2004 British Manual of the Law of Armed Conflict, as mentioned earlier, and "[m]ilitary use would include, for example, use for... construction of defensive positions ...."³⁸²

¶ 108         The use of property seized on grounds of military necessity in accordance with Article 52 of the Hague Regulations requires payment of compensation. Hence Israel, as mentioned earlier, offers property owners a yearly rent (usage fee) for the duration of the time during which the barrier will be standing on their property. This is in accord with the general practice in occupied territories, since as Feilchenfeld points out, "almost invariably the occupant merely takes possession and pays for using the land."³⁸³ It is important to reiterate that Israel's barrier is a temporary measure³⁸⁴ that can be dismantled when the security situation allows.³⁸⁵ It is in fact physically designed to be taken down quickly and easily under the appropriate security conditions. "[W]hen the terrorist threat has ceased," Israel expects "that the fence will be moved to reflect any agreement between the two sides. Israel is fully committed to doing so. It has moved such fences before - on its borders with Egypt, Jordan and Lebanon in the context of peace agreements or other arrangements."³⁸⁶ As Israel Foreign Minister Silvan Shalom further reiterates, once a peace agreement with the Palestinians is finally achieved, the security barrier will be moved, "just as the fence between Israel and Egypt was moved in the aftermath of a peace accord, the fence between Israel and Jordan was moved following a peace agreement, and the fence between Israel and Lebanon was moved following Israel's withdrawal from Lebanon."³⁸⁷ The President of Israel, Moshe Katzav, as well, has explicitly stated that "[i]f the Palestinians end terror, Israel must stop building the separation fence."³⁸⁸ Israel in fact does not even appropriate property from the owners; rather, it temporarily seizes the property for the duration of time required. Ownership of the land is in no way changed and, Israel says, it will be returned to the owners once the barrier is removed. In the interim, Israel offers landowners a usage fee according to the value of the land as determined by assessors. Should the landowner feel that the assessment is inaccurate or unfair in any way, as explained earlier, he may object to the assessment and ultimately petition the High Court of Justice.

¶ 109         "There is no doubt that the establishment of the Seam Zone harms the Palestinian residents in the zone,"³⁸⁹ explains Justice Beinish, in the Israel High Court of Justice decision in Ibrahim v. Commander of IDF Forces in the West Bank. She continues to opine:

Agricultural land will be seized and was seized in order to construct the obstacle, and the ability of the residents to utilize land in their possession could be significantly undermined, also their access to the land could be impeded. This hindrance is an immediate necessity and is a consequence of the state of warfare prevailing in the Region.³⁹⁰

Accordingly, renders the Israel High Court of Justice, "[e]ven though the seizure will cause damage, hardship, and inconvenience to residents, the measures taken are intended as an important component of the IDF's conception of combat, which was decided by those in charge of security . . . ."³⁹¹

¶ 110         Even the Protocol I Additional of 1977, which was designed to enhance humanitarian rights beyond those accorded in the Fourth Geneva Convention, specifically permits the occupying authority "where required by imperative military necessity," to "destroy, remove or render useless objects indispensable to the survival of the civilian population, such as food-stuffs, agricultural areas for the production of food-stuffs, crops, livestock, drinking water installations and supplies and irrigation works," when "in the defence of . . . national territory against invasion."³⁹²

¶ 111         It is beyond question that suicide bombers and other terrorists frequently "invade" the national territory of Israel. The First Protocol thus specifically recognizes that in the case of "the defence of its national territory against invasion" (that is, in defence of the territory of Israel), an Occupying Power may engage in measures "within such territory under its own control where required by imperative military necessity" (that is, in occupied territory) otherwise prohibited, such as rendering land useless to the local population: for instance, the construction of a security fence in those areas as "required by imperative military necessity."³⁹³ Reiterating this, the 2004 British Manual of the Law of Armed Conflict emphasizes that "[i]n cases of imperative military necessity, a party to the conflict may depart from the prohibition relating to indispensable objects in order to defend its national territory from invasion...."³⁹⁴

¶ 112         In fact, even during peacetime a person may be deprived of his possessions "in the public interest," subject of course "to the conditions provided for by law" as well as in fact "by the general principles of international law." Furthermore, it is typical that a State has the right to act as it deems "necessary to control the use of property in accordance with the general interest." For instance, article 1 of Protocol 1 of the Convention for the Protection of Human Rights and Fundamental Freedoms stipulates that

[e]very natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law. The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest . . . ."³⁹⁵ 

¶ 113         Moreover, even if the regime of international human rights were applicable to the conflict between the Palestinians and Israel, the relativity of rights would have to be properly weighed, and in so doing, property rights and freedom of movement are certainly inferior to the right to life. Article 6 of the International Covenant on Civil and Political Rights , as previously discussed, demands that the "right to life" of all be protected - and certainly that includes the right to life of Israelis. The article stipulates that "[e]very human being has the inherent right to life. This right shall be protected by law. No one shall be arbitrarily deprived of his life."³⁹⁶ Article 2 of the Convention for the Protection of Human Rights and Fundamental Freedoms similarly provides that "[e]veryone's right to life shall be protected by law," and that "[n]o one shall be deprived of his life intentionally...."³⁹⁷ The American Convention on Human Rights, as well, requires respect for everyone's life: "Every person has the right to have his life respected.... No one shall be arbitrarily deprived of his life."³⁹⁸ The Human Rights Committee observed in its general comment in 1984 that "the right to life... is the supreme right from which no derogation is permitted even in time of public emergency. The same right to life is enshrined in Article 3 of the Universal Declaration of Human Rights adopted by the General Assembly of the United Nations on 10 December 1948. It is basic to all human rights."³⁹⁹ For Israelis, then, the security barrier is a vital method by which Israel can attempt to secure this most basic and essential human right of all, the right to live.⁴⁰⁰

IX.    Freedom of Movement Limitations

¶ 114         The Fourth Geneva Convention Relative to the Protection of Civilian Persons in Time of War of 1949 addresses the restriction of movement of civilians in occupied territory and in Article 27 explicitly authorizes restrictions on the freedom of movement by taking "such measures of control and security in regard to protected persons as may be necessary as a result of the war."⁴⁰¹ Article 27 is the first article in Section I of Part III. This section enumerates provisions that are applicable to occupied territories as well as to the territories of the parties to the conflict, and is appropriately titled Provisions Common to the Territories of the Parties to the Conflict and to Occupied Territories.⁴⁰² Similarly, both the U.S. Army Field Manual on The Law of Land Warfare and the United Kingdom's 2004 Manual of the Law of Armed Conflict emphasize international law's unequivocal authorization to restrict the movement of civilians in occupied territory. After repeating verbatim in paragraph 266 of Chapter 5⁴⁰³ the Fourth Geneva Convention's authorization to take the security and control actions as may be necessitated by war concerning civilians in occupied territory,⁴⁰⁴ the U.S. Army Field Manual on The Law of Land Warfare in Paragraph 379 of Chapter 6,⁴⁰⁵ expressly and unambiguously applies these "measures of control and security" to an occupied territory's population, making it clear that the "measures of control and security in regard to protected persons as may be necessary as a result of the war" are indeed applicable to "the population of occupied territory."⁴⁰⁶ The 2004 Manual of the Law of Armed Conflict of the United Kingdom, as well, repeats the same concept in similar terms,⁴⁰⁷ which Greenspan likewise reaffirms.⁴⁰⁸

¶ 115         In explaining and interpreting the intent behind the "measures of control and security" to which civilians may be subjected in accordance with the Fourth Geneva Convention's Article 27, Jean S. Pictet, points out that:

[t]he right to personal liberty, and in particular, the right to move about freely, can naturally be made subject in war time to certain restrictions made necessary by circumstances. So far as the local population is concerned, the freedom of movement of civilians of enemy nationality may certainly be restricted, or even temporarily suppressed, if circumstances so require. That right is not, therefore, included among the other absolute rights laid down in the Convention.⁴⁰⁹

¶ 116         Pictet later describes the variety of security and control measures that occupying States may exercise:

There are a great many measures, ranging from comparatively mild restrictions such as the duty of registering with and reporting periodically to the police authorities . . . to harsher provisions such as a prohibition on any change in place of residence without permission, prohibition of access to certain areas, restrictions of movement, or even assigned residence and internment . . . .⁴¹⁰

¶ 117         Restrictions on free movement, for instance, are permitted the occupying authority under Article 78 of the Fourth Geneva Convention "[i]f the Occupying Power considers it necessary, for imperative reasons of security, to take safety measures concerning protected persons...."⁴¹¹ The U.S. Army Field Manual The Law of Land Warfare repeats this same authorization.⁴¹² Pictet explains that the reasoning behind the principle expressed in Article 78 of the Fourth Geneva Convention according to which the occupying authority may "take safety measures," when it deems it "necessary, for imperative reasons of security," that affect civilians in occupied territory, is that "[t]he persons subjected to these measures are not, in theory, involved in the struggle."⁴¹³

¶ 118         Article 49 of the Fourth Geneva Convention further specifically demonstrates that in occupied territory there may be restriction on the freedom of movement by the occupying authority if "imperative military reasons so demand." The second paragraph of Article 49 stipulates that:

the Occupying Power may undertake total or partial evacuation of a given area if the security of the population or imperative military reasons so demand. Such evacuations may not involve the displacement of protected persons outside the bounds of the occupied territory except when for material reasons it is impossible to avoid such displacement.⁴¹⁴

¶ 119         The U.S. Army Field Manual The Law of Land Warfare reiterates verbatim the authorization from Article 49 of the Fourth Geneva Convention for the occupying force to restrict the freedom of movement.⁴¹⁵ Likewise the 2004 Manual of the Law of Armed Conflict of the United Kingdom repeats this authorization in a similar manner.⁴¹⁶ Pictet, as well, repeats the restriction on civilians' freedom of movement under circumstances of evacuation that "imperative military reasons so demand" or "when the presence of protected persons in an area hampers military operations."⁴¹⁷

¶ 120         Moreover, Paragraph 5 of the Fourth Geneva Convention's Article 49 in fact explicitly allows an occupying authority to require civilians to remain in a specific location, even though they may thereby be exposed to war risks, where "imperative military reasons so demand": "The Occupying Power shall not detain protected persons in an area particularly exposed to the dangers of war unless the security of the population or imperative military reasons so demand."⁴¹⁸ The U.S. Law of Land Warfare army field manual,⁴¹⁹ as well as the 2004 British Manual of the Law of Armed Conflict,⁴²⁰ reiterate this same authorization. Pictet further elaborates on Article 49(5) that

the rule whereby individuals are free to move from place to place is subject to certain restrictions in wartime. Two such restrictions are mentioned here: the Occupying Power is entitled to prevent protected persons from moving, even if they are in an area particularly exposed to the dangers of war, if the security of the population or imperative military reasons so demand.⁴²¹

¶ 121         Consequently, concludes Pictet, "two considerations—the security of the population and 'imperative military reasons'—may, according to the circumstances, justify either the evacuation of protected persons... or their retention...."⁴²²

¶ 122         Article 43 of the Hague Regulations, in stipulating that the occupying power "shall take all the measures in his power to restore, and ensure, as far as possible, public order and safety,"⁴²³ also allows for restrictions on the freedom of movement of civilians in occupied territory. Thus, according to Gerhard von Glahn, in occupied territory travel laws, among others, will for instance naturally be altered, repealed, or suspended "in the interest of [the occupant's] safety and security."⁴²⁴ Greenspan similarly points out that it is normal for the occupying authority to amend or suspend the right of unrestricted travel in occupied territory.⁴²⁵ The occupying power "possesses a right to regulate the circulation of persons in the occupied enemy territory," explains von Glahn. "Quite often additional regulations prohibit travel beyond a certain distance from a person's domicile, except on passes granted by the occupation authorities."⁴²⁶ Likewise, in referring to the freedom of movement, the U.S. Army Field Manual on The Law of Land Warfare similarly prescribes that "[t]he occupant may withdraw from individuals the right to change their residence, restrict freedom of internal movement, forbid visits to certain districts, prohibit emigration and immigration."⁴²⁷ The British Manual of the Law of Armed Conflict from 2004 also in like manner allows restrictions on civilians in the form of security measures imposed by the occupying power.⁴²⁸

¶ 123         The law of warfare thus very much restricts freedom of movement, summarizes Greenspan:

One of the usual methods of exercising control over the population is to issue identity cards to all inhabitants. Movement by civilians within the territory is restricted, and only allowed outside defined areas by a system of passes. Road blocks are set up at various points to enforce such regulations. Certain areas may be entirely closed to the inhabitants living outside them. Entry and exit from the territory is strictly regulated. Curfews are often imposed . . . .⁴²⁹

Such restrictions are typical of State practice. During the First World War Allied occupation of the Rhineland, for instance, when there were fears that the war might re-ignite, "the military forces took the responsibility for preserving public order," writes Ernst Fraenkel, "and the civil liberties of the population were drastically restricted."⁴³⁰

¶ 124         Military necessity requiring restrictions on the freedom of movement of inhabitants of occupied territory may invariably encompass actions taken in defense of the occupying power.⁴³¹ The restriction of movement of civilians is a usual method of exercising control, during actual fighting as well as in occupied territory. Because an occupying authority, in those instances where "imperative military reasons so demand," has the right and, depending on the circumstances, indeed the obligation to restrict the movement of civilian inhabitants of the occupied territory, freedom of movement is certainly not a protected right of civilian inhabitants of occupied territory. As Pictet thus concludes, "the rule whereby individuals are free to move from place to place is subject to . . . restrictions in wartime."⁴³² It is natural that during situations of armed conflict civilian freedom of movement will be restricted, and Israel's construction of a security barrier designed to thwart and deter terrorists from committing violent attacks against Israelis is accordingly not a contravention of international law in this regard.

¶ 125         Moreover, even if the international human rights regime were applicable to occupied territories, it would allow for restrictions, such as a restriction on the freedom of movement of civilians when "necessary to protect national security" and "public order." The first paragraph of article 12, paragraph 1, of the International Covenant on Civil and Political Rights of 1966⁴³³ prescribes that "[e]veryone lawfully within the territory of a State shall, within that territory, have the right to liberty of movement and freedom to choose his residence." Yet, that very same article, two paragraphs later, permits digression from this venerated principle of free movement, even in times of peace, when "necessary to protect national security" and "public order": "The above-mentioned rights shall not be subject to any restrictions except those which are provided by law, are necessary to protect national security, public order (ordre public), public health or morals or the rights and freedoms of others, and are consistent with the other rights recognized in the present Covenant."⁴³⁴

¶ 126         According to the official commentary on this article 12, while "[l]iberty of movement is an indispensable condition for the free development of a person," the article at the same time

provides for exceptional circumstances in which rights . . . may be restricted. This provision authorizes the State to restrict these rights only to protect national security, public order (ordre public), public health or morals and the rights and freedoms of others. To be permissible, restrictions must be provided by law, must be necessary in a democratic society for the protection of these purposes and must be consistent with all other rights recognized in the Covenant . . . . [The restrictions] must . . . be necessary to protect them. Restrictive measures must conform to the principle of proportionality; they must be appropriate to achieve their protective function; they must be the least intrusive instrument amongst those which might achieve the desired result; and they must be proportionate to the interest to be protected.⁴³⁵

¶ 127         If this International Covenant were applicable to the disputed territories, and in light of the deadly suicide bombers and other perpetrators of violence incessantly terrorizing Israelis, it would thus be a rather strained contention to allege that Israel is not faced with a situation in which it is not "necessary to protect national security, public order," in the terms of paragraph 3, Article 12 exceptions to "the right to liberty of movement." Accordingly, the security fence, designed to thwart and frustrate deadly terrorism and violence carried out against Israelis, is "necessary to protect them." Moreover, "restrictive measures" in the form of Israel's security barrier most definitely "conform to the principle of proportionality" and are certainly "appropriate to achieve their protective function." The barrier is clearly "the least intrusive instrument amongst those which might achieve the desired result" and beyond doubt it is "proportionate to the interest to be protected."⁴³⁶

¶ 128         This restriction of the freedom of movement is typical under other international instruments comprising the regime of international human rights law. For instance, article 2 of Protocol 4 to the Convention for the Protection of Human Rights and Fundamental Freedoms, provides that "[e]veryone lawfully within the territory of a State shall, within that territory, have the right to liberty of movement and freedom to choose his residence ..." and that "[n]o restrictions shall be placed on the exercise of these rights other than such as are in accordance with law and are necessary in a democratic society in the interests of national security or public safety for the maintenance of 'ordre public,' for the prevention of crime, for the protection of rights and freedoms of others." In addition, "the right to liberty of movement" is "subject, in particular areas, to restrictions imposes [sic] in accordance with law and justified by the public interest in a democratic society."⁴³⁷

¶ 129         Beyond restrictions on "the right to liberty of movement" when "necessary in a democratic society in the interests of national security," Protocol 4 to the Convention for the Protection of Human Rights and Fundamental Freedoms permits restrictions on "the right to liberty of movement" when "necessary in a democratic society in the interests of public safety for the maintenance of 'ordre public', for the prevention of crime, for the protection of rights and freedoms of others." It would be quite specious to argue that terrorism perpetrated against Israelis is neither a matter of public safety nor a crime, the prevention of which is "necessary in a democratic society," which would consequently permit restricting "the right to liberty of movement." Moreover, according to Protocol 4, if "necessary in a democratic society in the interests of national security or public safety . . . for the protection of rights and freedoms of others"—say Israelis' right to life, for example— the "right to liberty of movement" may also be restricted. Article 2 of the Convention for the Protection of Human Rights and Fundamental Freedoms specifically provides that "[e]veryone's right to life shall be protected by law," and that "[n]o one shall be deprived of his life intentionally...."⁴³⁸ It would thus be spurious to claim that Israel has no "public interest" in protecting its citizens' "right to life" by obstructing and preventing the perpetration of terrorist atrocities within its "democratic society" in a manner such as would restrict "the right to liberty of movement", that is, by constructing a security barrier the consequences of which would protect the "right to life" of Israelis. Article 6 of the International Covenant on Civil and Political Rights also protects the "right to life" as such: "Every human being has the inherent right to life. This right shall be protected by law. No one shall be arbitrarily deprived of his life."⁴³⁹ The Human Rights Committee observes in its general comment in 1982 that

the right to life enunciated in the first paragraph of article 6 of the International Covenant on Civil and Political Rights is the supreme right from which no derogation is permitted even in time of public emergency. The same right to life is enshrined in article 3 of the Universal Declaration of Human Rights adopted by the General Assembly of the United Nations on 10 December 1948. It is basic to all human rights.⁴⁴⁰

¶ 130         Also, though phrased more generally, but nonetheless applicable, article 4 of the International Covenant on Civil and Political Rights (1966), lays down that

[i]n time of public emergency which threatens the life of the nation and the existence of which is officially proclaimed, the States Parties to the present Covenant may take measures derogating from their obligations under the present Covenant to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with their other obligations under international law and do not involve discrimination solely on the ground of race, colour, sex, language, religion or social origin.⁴⁴¹

The official 1981 Commentary on that article indicates that "[w]hen a public emergency which threatens the life of a nation arises and it is officially proclaimed, a State party may derogate from a number of rights to the extent strictly required by the situation."⁴⁴² In 2001, the commentary on the permitted derogations in article 4 recognized and acknowledged the possibility of derogation from application in times of war:

The Covenant requires that even during an armed conflict measures derogating from the Covenant are allowed only if and to the extent that the situation constitutes a threat to the life of the nation. If States parties consider invoking article 4 in other situations than an armed conflict, they should carefully consider the justification and why such a measure is necessary and legitimate in the circumstances.⁴⁴³

¶ 131         According to the 2001 commentary on article 4, "the obligation to limit any derogations to those strictly required by the exigencies of the situation reflects the principle of proportionality which is common to derogation and limitation powers,"⁴⁴⁴ which principle would undoubtedly be preserved in the building of a security barrier.

¶ 132         The International Covenant on Civil and Political Rights moreover does not categorize "the right to liberty of movement" in such a category as to be a right from which "no derogation" is permitted under article 4, paragraph 2, as is the case with other rights,⁴⁴⁵ such as the right to life in article 6; the prohibition of torture or cruel, inhuman or degrading punishment, or of medical or scientific experimentation without consent under article 7; prohibition of slavery, slave-trade and servitude under article 8, paragraphs 1 and 2; prohibition of imprisonment because of inability to fulfill a contractual obligation under article 11; the principle of legality in the field of criminal law, i.e. the requirement of both criminal liability and punishment being limited to clear and precise provisions in the law that was in place and applicable at the time the act or omission took place, except in cases where a later law imposes a lighter penalty under article 15; the recognition of everyone as a person before the law under article 16; and freedom of thought, conscience and religion under article 18, which are considered sacrosanct and "non-derogable by the very fact that they are listed in article 4, paragraph 2."⁴⁴⁶

X.    Conclusion

¶ 133         Even if the regime of international human rights were applicable to occupied territories, the overwhelming majority of persons in the Gaza Strip and the West Bank are living under direct Palestinian control and thus are not subject to the jurisdiction of Israel as a result of the transfer to the Palestinian Authority of responsibility and authority over them pursuant to various international agreements between the Palestinians and Israel.

¶ 134         Furthermore, the regime of international humanitarian law applicable in armed conflict situations and the regime of international human rights applicable in peacetime are mutually exclusive since there is a distinct contradiction between them. The government of an occupying authority over an occupied territory is different from the government of a State over its own territory. The objective of belligerent occupation is not the occupied population's welfare, and human rights applicable during peace are in abeyance throughout the military occupation. During war, the international legal standards that apply are not always the same as the legal standards that apply during peace.

¶ 135         Although the protection of the individual is paramount both in the regime of international human rights law as well as in the international humanitarian law regime, they are significantly different one from the other. Disparate and special human rights, stemming from the extraordinary circumstances surrounding war, are created as the result of war and operate in place of those suspended. The laws of war strive to maintain an appropriate balance between humanity and military necessity, and the international humanitarian law regime was developed with such armed conflicts in mind. In fact, given that international humanitarian law developed in light of military considerations, from a purely practical standpoint there is actually a greater likelihood of compliance with it thereby ensuring more of a chance that human beings will actually be better protected during armed conflict situations than would happen under a regime of vague human rights. International humanitarian law is thus more suitable to address humanitarian issues of the nature that arise in armed conflict and the relationship between a State and the citizens of its adversary than international human rights law. For human rights to be more effectively protected during war, the more inclusive and better coverage designed for the unique situation of wartime is consequently afforded by the humanitarian law specifically adapted for war.

¶ 136         From the onset of the Palestinian violence in 2000, it was the Palestinian leadership itself that incited, financed, stimulated, encouraged, and promoted terrorism against Israeli targets, and the Palestinian Authority refused to take appropriate and effective action against the terrorists, which as a consequence has forced Israel to construct the security barrier.⁴⁴⁷ Their actions (and omissions) have even substantially determined its route.⁴⁴⁸

¶ 137         The concept behind a security barrier as a vital element in combating terrorists is to create an obstacle between the majority of the Palestinian inhabitants of the disputed territories and the majority of Israelis. Hampering terrorist incursions thereby facilitates the defense of the Israeli civilian population.⁴⁴⁹ At the same time, however, Israel is striving to maintain a proper balance between legitimate security concerns on the one hand and property restrictions and ensuing limitations on free movement on the other. In a situation of armed conflict, just as under a regime of belligerent occupation, it nevertheless is the duty, in addition to the right, of both the belligerent power as well as the occupying authority to engage in those military measures necessary to accomplish the purpose of the war, even though the methods employed to realize the war aims may as a matter of course require the limitation of the use of property through its seizure or even destruction as well as the limitation of free movement.

ENDNOTES