Tuesday, August 25, 2015
Elder of Ziyon
Human Rights Watch issued a report:
What does international law say?
For the purposes of this post, we will assume that Israel is occupying Area C of Judea and Samaria, which is the legal basis of Israel's Supreme Court decisions, even though it never ruled on that question specifically.
The law prohibiting confiscating private property comes from the Hague Conventon IV article 46, which states flatly "Private property cannot be confiscated."
But these buildings weren't built on private property. They were illegally built on public state lands.
What does the Hague Convention say about the legal obligations of an occupying power?
That is in article 43:
And under none of those sets of laws would illegal building on state be considered to magically become private property and protected under the law from being demolished. That idea is nonsensical; Imagine what the New York City government would do if people built buildings in Central Park and then claimed to be homeless and forced to relocate when they were demolished.
HRW is clearly and knowingly lying when they use the "private property" argument.
B'Tselem is a bit more knowledgeable about international law than Human Rights Watch and doesn't try to use HRW's clearly incorrect legal reasoning. Instead, it only argues HRW's second reason, saying that "These expulsion plans run counter to the provisions of international humanitarian law, which prohibit the forcible transfer of protected persons, unless carried out for their own protection or for an imperative military need." But again it is absurd to say that legally demolishing buildings built without permits is "forcible transfer." On the contrary, it is enforcing the law. The alternative is to give anyone the right to squat on public lands, which is clearly absurd.
There are exceptions where the occupier may override pre-existing laws for security or other purposes, for example to strike down pre-existing laws that violate human rights or otherwise contradict the provisions of "public order and safety." The full extent of that permission is argued by various legal scholars. But as far as I can tell, no one says that Israel is mandated to change existing Ottoman/British land and zoning laws - and to do so without good reason would be a violation of international law!
Yet this is exactly what these NGOs are demanding that Israel do - to uproot or ignore pre-existing land laws.
Perhaps these organizations have a point in that Israel is not enforcing the pre-existing laws equally between Jews and Arabs in Judea and Samaria. In this particular case, however, the illegal squatters on state land never even bothered to submit applications for building permits or to submit a master plan for rezoning areas for residential use. The reason, of course, is because these structures were meant as a land grab and not as a declaration of private property rights. The Bedouin knew very well that their buildings were illegal, and Jews who would build random structures on state land would be treated the same way.
Yet even if you claim that Israel's application of zoning laws is not done evenly, "it's not fair" is not a principle of international law that is being violated.
One argument that may be made in favor of Israel's changing the zoning laws could perhaps come from an expansive reading of "public order and safety" in the Hague Conventions, a reading that Israel's Supreme Court in fact has used, translating the original French "la vie publique" as ‘civil life’ which is much more than "public order." Yet even then, that does not mean that Israel is obligated to go so far as to change existing laws. As legal scholar Marco Sasson writes:
The UN, B'Tselem and HRW are not telling the truth about international law, and they are twisting it deliberately to target Israel.
(Israel's Supreme Court does not recognize forcible transfers within occupied territory to be against the Geneva Conventions prohibition on "forcible transfer," but the ICRC does, so we will not argue that point here.)
The Israeli military unlawfully demolished at least 39 structures in Bedouin Palestinian communities in the West Bank on August 17 and 18, 2015. The demolitions left 126 people homeless, 80 of them children. Four of the communities where the demolitions took place are targeted by an Israeli government plan to forcibly “relocate” 7,000 Bedouin.B'Tselem also says that this is against international humanitarian law. The UN had stated that previously and I fisked that UN statement.
Such destruction of private Palestinian property and the forcible transfer of Palestinians violate Israel’s human rights obligations and the laws of occupation. The Fourth Geneva Convention prohibits an occupying power from destroying private property or forcibly transferring the protected population unless strictly necessary for military reasons. Israel does not claim the demolitions or planned relocations are justified for military reasons.
What does international law say?
For the purposes of this post, we will assume that Israel is occupying Area C of Judea and Samaria, which is the legal basis of Israel's Supreme Court decisions, even though it never ruled on that question specifically.
The law prohibiting confiscating private property comes from the Hague Conventon IV article 46, which states flatly "Private property cannot be confiscated."
But these buildings weren't built on private property. They were illegally built on public state lands.
What does the Hague Convention say about the legal obligations of an occupying power?
That is in article 43:
The authority of the legitimate power having in fact passed into the hands of the occupant, the latter shall take all the measures in his power to restore, and ensure, as far as possible, public order and safety, while respecting, unless absolutely prevented, the laws in force in the country.Under international law, Israel must do everything possible to respect the laws that were in place before the occupation - meaning the laws from the previous Jordanian and British and Ottoman governments.
And under none of those sets of laws would illegal building on state be considered to magically become private property and protected under the law from being demolished. That idea is nonsensical; Imagine what the New York City government would do if people built buildings in Central Park and then claimed to be homeless and forced to relocate when they were demolished.
HRW is clearly and knowingly lying when they use the "private property" argument.
B'Tselem is a bit more knowledgeable about international law than Human Rights Watch and doesn't try to use HRW's clearly incorrect legal reasoning. Instead, it only argues HRW's second reason, saying that "These expulsion plans run counter to the provisions of international humanitarian law, which prohibit the forcible transfer of protected persons, unless carried out for their own protection or for an imperative military need." But again it is absurd to say that legally demolishing buildings built without permits is "forcible transfer." On the contrary, it is enforcing the law. The alternative is to give anyone the right to squat on public lands, which is clearly absurd.
There are exceptions where the occupier may override pre-existing laws for security or other purposes, for example to strike down pre-existing laws that violate human rights or otherwise contradict the provisions of "public order and safety." The full extent of that permission is argued by various legal scholars. But as far as I can tell, no one says that Israel is mandated to change existing Ottoman/British land and zoning laws - and to do so without good reason would be a violation of international law!
Yet this is exactly what these NGOs are demanding that Israel do - to uproot or ignore pre-existing land laws.
Perhaps these organizations have a point in that Israel is not enforcing the pre-existing laws equally between Jews and Arabs in Judea and Samaria. In this particular case, however, the illegal squatters on state land never even bothered to submit applications for building permits or to submit a master plan for rezoning areas for residential use. The reason, of course, is because these structures were meant as a land grab and not as a declaration of private property rights. The Bedouin knew very well that their buildings were illegal, and Jews who would build random structures on state land would be treated the same way.
Yet even if you claim that Israel's application of zoning laws is not done evenly, "it's not fair" is not a principle of international law that is being violated.
One argument that may be made in favor of Israel's changing the zoning laws could perhaps come from an expansive reading of "public order and safety" in the Hague Conventions, a reading that Israel's Supreme Court in fact has used, translating the original French "la vie publique" as ‘civil life’ which is much more than "public order." Yet even then, that does not mean that Israel is obligated to go so far as to change existing laws. As legal scholar Marco Sasson writes:
Under the general rule, as its qualifications ‘all measures in his power’ and ‘as far as possible’ confirm, public order and civil life are not results that must be guaranteed by an occupying power, but only aims it must pursue with all available, lawful and proportionate means. One may argue that the required standard of action is below that with which human rights instruments expect states to comply in fulfilling human rights, in particular social, economic and cultural rights, since, as discussed below, the occupying power is not sovereign and its legislative powers are limited.There is obviously a tension between the Hague provisions to ensure public order and civil life and to "respect, unless absolutely prevented, the laws in force in the country." But to demand that the latter, written in very strong language, trumps the former, and not doing so is a violation of international law, is clearly wrong.
The UN, B'Tselem and HRW are not telling the truth about international law, and they are twisting it deliberately to target Israel.
(Israel's Supreme Court does not recognize forcible transfers within occupied territory to be against the Geneva Conventions prohibition on "forcible transfer," but the ICRC does, so we will not argue that point here.)
