1

Expert Opinion Submitted to the Israeli High Court of Justice in the matter of

Dqeiqa Village Council v. The Military Commander of the West Bank

Professor Iain Scobbie, Alon Margalit and

Sarah Hibbin (Research Associates), Sir Joseph Hotung Programme for Law,

Human Rights and Peace Building in the Middle East

Introduction and Factual Background

1. This expert opinion was prepared following a request by Rabbis for Human

Rights on behalf of the Applicants (Dqeiqa Village Council et al). It examines the

legality under international law of the forced removal of residents that will result

from the execution of administrative demolition orders issued to a number of

buildings in the Palestinian village of Dqeiqa in the West Bank by the Respondent

(the Israeli Military Commander in the West Bank).

2. We were advised by the Applicants that more than 300 persons currently live in

Dqeiqa which has existed in its current location at least since the Ottoman period and certainly before the Israeli occupation began in 1967.1 It has proved difficult

to locate old maps showing the location of the village but this is unsurprising

given that the cadastral survey of Palestine initiated by the British was not

completed by the end of their Mandate. Under Article 11(1) of the Mandate for

Palestine, they had the responsibility “to introduce a land system appropriate to the needs of the country”.2 The existing Ottoman land and land tax registers

1 The Applicants have advised that in Dqeiqa is a cemetery dating from the Ottoman period.

Whilst the Bedouin were traditionally nomadic, by the late Ottoman and British Mandatory periods,

most of those in historic Palestine, with the exception of those in the Negev, had been forced to adopt

sedentary existences and had been settled in villages. See for instance, S. Frantzman and R. Clark,

‘British Mandatory Palestine: Influence on the Cultural and Environmental Landscape, 1870-1948’, 1

(2011) New Middle Eastern Studies 1, noting the effect not only of demographic changes in this process

but also of regulations such as the 1942 Bedouin Control Ordinance which sought to “provide the

administration with special powers of control of nomadic or semi-nomadic tribes with the object of

persuading them towards a more settled way of life” (at p. 15). See also Sir E Dowson, “Memorandum,

dated December 1923, covering ‘Notes on Land Tax, Cadastral Survey and Land Settlement in

Palestine’, CO814/60”, in M. Bunton (ed), Land Legislation in Mandate Palestine, Vol. V (Official Reports

and Memoranda), CUP: Cambridge (2009), Chapter 3.02, pp 551-553.

2 Art 11(1) of the Mandate for Palestine, available at

http://unispal.un.org/UNISPAL.NSF/0/2FCA2C68106F11AB05256BCF007BF3CB.

2

however proved useless,3 necessitating their complete replacement through a

cadastral survey of the territory; a process made more complicated by the

difficulty of obtaining translated texts of the relevant laws.4 The Survey prioritised

districts to which the “best economic return to the State and the nation at large is

obtained” from land and property taxes and as a result the then more sparsely

populated areas, including much of what is now the West Bank were left until

last.5 The Department of Survey’s Report for the years 1940-1946 indicates that

by 1945 many Arab towns and particularly villages in what is now the West Bank

had not yet been surveyed, and describes a plan to address this, in order to facilitate effective post-war town and country planning.6 The situation that

prevailed at the end of the Mandate however made it impossible to the Survey to

complete its work – many villages remained unsurveyed and in the fighting that

broke out towards the end of the Mandate, many of the documents and maps of

villages that had been surveyed were either lost or stolen.7 It can only be

assumed that Dqeiqa was one of those villages that the Survey did not get to, or if

it had, that the relevant documents were lost. We were advised that Dqeiqa has

been recognized by the Palestinian Authority. The Respondent however does not.

3 Sir E. Dowson, the land expert who advised the Palestine government lamented “the entire

absence of reliable statistical information of even the crudest character in regard to the distribution of

the land according to the recognized legal categories”. See ‘Preliminary Study of Land Tenure in

Palestine’, November 1925, para 3, pp. 158 in CO 733/109 (Chapter 1.09) in M. Bunton (ed), Land

Legislation in Mandate Palestine, Vol. V (Official Reports and Memoranda), CUP: Cambridge (2009).

4 See Sir E. Dowson ‘Covering Memorandum to Report on the Land System in Palestine’,

December 1925, pp 222-232, CO 733/109 (Chapter 1.09) in M. Bunton (ed), Land Legislation in

Mandate Palestine, Vol. V (Official Reports and Memoranda), CUP: Cambridge (2009). See further F.

Goadby and E. Doukhin, The Land Law of Palestine, Tel-Aviv: Palestine, 1935, Preface and Chapter XVII

(pp. 269-293) describing the process of cadastral survey and land settlement. They note that “the

language of the [Land Settlement] Ordinances suggest their purpose is to secure registration of land

with a view primarily to make certain both for the present and future the ownership and power of

disposition thereof” (p 286). Also available in M. Bunton (ed), Land Legislation in Mandate Palestine,

Vol. II (Standard Reference Works), CUP: Cambridge (2009), Vol. 2.

5 See Sir E Dowson, ‘Notes on Land Tax, Cadastral Survey and Land Settlement in Palestine’, 7

December 1923 in M. Bunton (ed), Land Legislation in Mandate Palestine, Vol. V (Official Reports and

Memoranda), CUP: Cambridge (2009), Chapter 3.02, para 17, p 532. See also Franzman and Clark

(note 1 above), p. 14-15 citing a 1933 memo from the Commissioner of Lands who noted that “in the

course of the fiscal survey which is being carried out in the country to replace the [Ottoman] tithe

[system], it has been ascertained that the list of villages…is neither correct nor comprehensible.”

6 Department of Surveys, ‘Report for the years 1940-1946 (with Supplement for 1947-1948)’,,

CO814/40, Chapter 4.05 in M Bunton (ed), Land Legislation in Mandate Palestine, Vol. V (Official

Reports and Memoranda), CUP: Cambridge (2009), p 752.

7 The Supplement to the Department of Survey’s Report for the years 1940-1946 published the

following year however notes the adverse impact of political events upon the Department’s work in

the months leading up to the end of the Mandate. Ibid,, pp 785-788. See further Dov Gavish, A Survey

of Palestine under the British Mandate, 1920-1948, RoutledgeCurzon: Abingdon (2005). See also A

Coon, Town Planning Under Military Occupation: an examination of the law and practice of town

planning in the occupied West Bank, Dartmouth Publishing: Aldershot /Al-Haq: Ramallah (1992) p. 70.

3

3. In terms of local planning legislation, we were advised that a regional zoning plan

– “RJ-5” - that was introduced more than 70 years ago, is still applied to the West

Bank. It is located in an area defined in the plan as ‘a desert area’, with no further

provisions or guidelines in relation to planning and building. Such detail was to

have been provided in “outline plans” but for villages in the West Bank these

were not drawn up and approved.8 The most likely explanation for this is that, as

indicated above, the Department of Surveys did not complete its cadastral survey.

From the late 1970s the Military Commander began to introduce “special zoning

updates”, which are applied to villages.9 None has been introduced for Dqeiqa

however and it has consequently been neglected throughout the time of Israel’s

occupation of the West Bank, with no public services having been extended

there.

4. In 1984 Carmel, an Israeli settlement, was established about 6 kilometers from

Dqeiqa. More than 350 persons live there and the Israeli Government has

extended public services (roads, water, electricity, communication, health etc) as

well as constructed public buildings in the settlement. Carmel was established in

the absence of a zoning plan and its buildings constructed without permits.

Instead and in stark contrast to the situation in Dqeiqa, a zoning plan for Carmel

was retroactively introduced in 1991 and a second plan issued in 2002. Based on

these plans, building permits have been retroactively issued for buildings in the

settlement. Furthermore, buildings that have been constructed outside these

plans' boundaries have not been demolished (although some of them are marked

“for demolition”).

5. In 1971, the 1966 Jordanian planning law10 was first amended by the Military

Commander in a manner that effectively abolished the planning powers of the

local councils. The 1966 law had given the local population some representation

and input into the planning process at the more detailed, local level than regional

zoning plans characteristically do. These powers were instead invested with the

Military Commander and/or other bodies are appointed by him.11 Subsequent

military orders appear to have further strengthened this change.12

8 A Coon, ibid.

9 For a detailed analysis of the use of the Mandatory Regional Outline and the supplementary

Special Outline Plans by the Military Commander in Area C see N Shalev, and A Cohen-Lifshitz, The

Prohibited Zone: Israeli Planning Policy in the Palestinian Villages in Area C, Bimkom: Planners for

Planning Rights, (2008).

10 The Law of Cities, Villages and Buildings, No. 79 of 1966. This replaced Law of Planning for

cities, Villages and buildings, No. 31 of 1955 which had in turn replaced the 1936 Town Planning

Ordinance. The Jordanian planning laws are discussed in A Coon (note 7 above), pp 40-55 and in N

Shalev & A Cohen-Lifshitz (2008), note 9 above, pp 35-38.

11 Military Order No. 418 of 1971 “Order relating to the Law of Cities, Villages and Buildings”.

Available in English in A. Coon, (1992), note 7 above, pp 220-221. See also U. Halabi, Legislation

4

6. The Applicants have tried since 2005, when the Military Commander issued

demolition orders against number of buildings in Dqeiqa, to argue that the State

has a responsibility to issue a plan for Dqeiqa as part of its obligation to maintain

order and public life of a protected population in occupied territory. The petition

to require the Military Commander to initiate a plan for Dqeiqa was rejected by

the High Court (hereinafter “this Court”) in 2010 although it noted the

Respondents' stated openness to examining such a plan submitted by Dqeiqa

residents. We are advised that in fact the Military Commander has proved

extremely uncooperative in this regard and unwilling to engage in any

substantive way with the residents in their efforts to submit a plan to him. As a

result the residents of Dqeiqa face the very real prospect that their homes will be

demolished. Should the demolition order be effected, we are advised the villagers

will be left homeless and with a consequent loss of livelihood as they do not have

an alternative source of income, and their community shattered.

Applicable Laws

7. The Expert Opinion prepared by Dr. Boutruche and Professor Sassoli, which

examines the legality of the planning and building regimes in Area C, sets out the

relevant applicable law to the Petition.13 This includes relevant rules of

international law (both treaty and customary); domestic law applicable in the

West Bank prior to its occupation by Israel (most particularly in this case the

1966 Towns, Villages and Buildings Planning Law); and military orders enacted in

the territory, by Military Commander’s powering in accordance with the law of

military occupation. It is not proposed here to duplicate that analysis but only to

make a couple of additional points.

8. Dqeiqa is located within Area C of the West Bank; defined under the Oslo Accords

as:

Areas of the West Bank outside Areas A and B, which, except for the

issues that will be negotiated in the permanent status negotiations, will

pertaining to planning and construction in Palestine, Piezeit University Law Center: Palestine, 1997, pp

16-17; and N Shalev & A Cohen-Lifshitz, (2008), note 9 above, pp. 39-45.

12 For instance Military Order 604 of 1975; Military Order 860 of 1980; Military Order 1043 of

1983.

13 M Sassoli and T Boutruche, Expert Opinion on International Humanitarian Law Requiring of

the Occupying Power to Transfer Back Planning Authority to Protected Persons Regarding Area C of the

West Bank, Rabbis for Human Rights, February 2011, pp. 2-5. Available at http://rhr.org.il/heb/wp-

content/uploads/62394311-Expert-Opinion-FINAL-1-February-2011.pdf

5

be gradually transferred to Palestinian jurisdiction in accordance with

this Agreement.14 (emphasis added)

Article 22 of the Protocol on Civil Affairs to the Interim Agreement concerns land

registration in the West Bank and the Gaza Strip. Under this, Israel agreed to

transfer responsibilities under the Towns, Villages and Buildings Planning Law

No. 79 of 1966, to the Palestinians. In Area C, the transfer was to have been

effected gradually.15 This was not done and consequently the arguments in this

Expert Opinion are based on the assumption that the Military Commander

continues to exercise exclusive jurisdiction in Area C with regards to matters

relevant to the petition.

9. Article XI(1)of Annex I of the Interim Agreement provides that:

Subject to the provisions of this Agreement, the Palestinian police and

the Israeli military forces shall exercise their powers and

responsibilities pursuant to this Agreement with due regard to

internationally-accepted norms of human rights and the rule of law,

and shall be guided by the need to protect the public, respect human

dignity and avoid harassment.16

10. Accordingly, the High Court has repeatedly ruled that the human rights of the

population of the occupied territories cannot be disregarded by the occupying

forces.17

International Humanitarian Law and the Israeli Legal System

11. Israel is not a party to the Hague Regulations, but the High Court has long

recognized that its provisions form part of customary international law and that

as a result Israel is legally bound by them, and they are cognizable by the Court.18

14 Article XI (3c), Israeli-Palestinian Interim Agreement on the West Bank and the Gaza Strip,

Washington DC, September 28 1995, 36 (1997) International Legal Materials 557, 562.

15 Article 22(2), Annex III: Protocol Concerning Civil Affairs, Washington DC, September 28 1995,

36 (1997) International Legal Materials 614.

16 Article XI (1), Annex I: Protocol Concerning Security Arrangements, Washington DC, September

28 1995, 36 (1997) International Legal Materials 557, 584.

17 See for instance the opinions of President Barak in the Targeted killings case (2005), para 18;

in Ajuri et al v IDF Commander in the West Bank et al (2002), HCJ 7015/02, paras 14-16; and in

Mara’abe et al v Prime Minister of Israel et al (2005), HCJ 7957/04, paras 24-28---in this last case,

although President Barak declined to rule expressly on the formal applicability of the International

Covenant on Civil and Political Rights in the occupied territories, he stated, “When this question arose

in the past in the Supreme Court, it was left open, and the Court was willing, without deciding the

matter, to rely upon the international conventions...We shall adopt a similar approach”. See also E

Benvenisti, ‘Responsibility for the protection of human rights under the Interim Israeli-Palestinian

Agreements’, 28 Israel Law Review 297 (1994).

6

12. Although Israel became a party to the Fourth Geneva Convention on 6 July 1951,

the Convention has not been incorporated into domestic law.19 Following its

occupation of the West Bank and the Gaza Strip at the end of the June 1967 war,

the Israeli Government took the position that in light of its conventional nature,

the Fourth Geneva Convention was not applicable as a matter of law to the

Occupied Palestinian Territory (OPT). It undertook however to apply the

Convention’s ‘humanitarian provisions’ on a de facto basis.20 Based on this, the

Israeli High Court has held the Convention applies only on a case-by-case basis,

without ever ruling on the question of its application and legal status en bloc as

customary international law, beyond recognizing that Palestinian civilians have

the status of protected persons within the meaning of the Convention.21

13. Israel is not a party to the 1977 Protocol Additional to the Geneva Conventions of

12 August 1949 (‘Additional Protocol I’). The Israeli High Court has nevertheless

consistently held that the Military Commander is bound not only by the Hague

Regulations, but also by those provisions of the Fourth Geneva Convention and

Additional Protocol I, which reflect customary international law.22

14. Unlike conventional law, customary international law, as a general rule is

automatically incorporated into Israeli domestic law and needs no implementing

legislation in order to be justiciable in Israeli courts. According to Israeli

jurisprudence, customary international law is part of Israeli law, provided it does

not conflict with primary legislation enacted by the Israeli Knesset or

legislature.23 Hence, notwithstanding the customary status of a number of the

18 HCJ 606/78 Ayyub v Minister of Defence [1978] PD 33 (2) 113 (Beth El case). See D Kretzmer

The Occupation of Justice: The Supreme Court of Israel and the Occupied Territories, State University of

New York Press: New York (2002), p 36.

19 HCJ 785/87 Afu v IDF Commander in the West Bank [1988] PD 42(2) 4; HCJ 253/88 Sejdiah v

Minister of Defence [1988] PD 42(3) 801; Y Dinstein, ‘Deportation from Administered Territories’, 13

Tel Aviv University Law Review 403 (1988), pp 403-404 (in Hebrew)

20 See N Bar-Yaakov ‘The Applicability of the Laws of War to Judea and Samaria (The West Bank)

and to the Gaza Strip’, 24 Israel Law Review 485 (1990), p 485.

21 HCJ 7015/02 Ajuri v IDF Commander in the West Bank [2002] para 13; HCJ 2056/04 Beit

Sourik Village Council v The Government of Israel [2004] para 24; HCJ 7957/04 Mara'abe v Prime

Minister of Israel [2005] para 14. The Israeli High Court has indicated that some of the Fourth Geneva

Convention’s provisions form part of customary international law and, as such, part of Israeli law, see

HCJ 769/02 Public Committee Against Torture in Israel v the Government of Israel [2005] (Targeted

killings case) para 20.

22 HCJ 769/02 Public Committee Against Torture in Israel v The Government of Israel [2006]

(Targeted killings case) para 20 and the sources cited there.

23 The Israeli approach follows the doctrine of incorporation adopted by English law that

determines that ‘the rules of international law are incorporated into English law automatically and

considered to be part of English law unless they are in conflict with an Act of Parliament’, see S Fatima,

Using International Law in Domestic Courts, Hart Publishing: Oxford (2005), p 405 and the sources

cited there.

7

provisions of the Fourth Geneva Convention and Additional Protocol I, a statute of

the Knesset, even if inconsistent with the customary rule, would prevail in an

Israeli court.24

15. Whatever the validity of the proposition with regards to Israeli law, it fails in the

context of occupied territory. Firstly, as an occupant Israel does not enjoy any

sovereign prerogatives in the OPT but only has a temporary right of

administration. Israel's legislature therefore does not possess the power to

legislate for that territory.25 Secondly, the planning and demolitions policy in the

West Bank is based on orders of the Military Commander, rather than on primary

legislation of the Israeli Parliament. The Military Commander is part of the

executive branch, being ‘the long arm’ of the Israeli government in the occupied

territory and is therefore always bound by treaties to which the executive has

consented to be bound and customary international law.26 Any perceived

difficulty that this High Court may encounter in reconciling Israeli domestic law

with customary international norms, absolves neither Israel nor the Military

Commander from the obligation to comply with international law.27

International law of belligerent occupation

16. The situation facing the residents from Dqeiqa village raises a number of issues

under the international law of belligerent occupation. Foremost among these are

Articles 43 of the 1907 Hague Regulations and Article 49 of the Fourth Geneva

Convention.

17. The Expert Opinion prepared by Dr. Boutruche and Professor Sassoli provides a

detailed analysis of Article 43 of the 1907 Hague Regulations, which it then relates

to the planning and building regime in Area C. Their analysis elucidates the intent

and purpose behind the Article which they note “must be understood in

24 HCJ 2690/09 Yesh Din v The Military Commander [2010] para 6 (Judgement of 28 March

2010, yet not published in English, unofficial translation by the authors).

25 According to Article 43 of the Hague Regulations the Occupying Power must respect, unless

absolutely prevented, the laws in force in the occupied territory; See also M Sassoli, ‘Legislation and

Maintenance of Public Order and Civil Life by Occupying Powers’, 16 European Journal of International

Law 661 (2005), pp 661, 673; Y Dinstein, The International Law of Belligerent Occupation, Cambridge

University Press: Cambridge (2009), pp 108, 244-245, 247; D Kretzmer (2002), note 18 above, p 40.

26 See HCJ 302/72 Abu Hilo v Government of Israel [1972] PD 27(2) 169, 176; HCJ 698/80

Kawasme v Minister of Defence [1982] PD 35(1) 617, 636; HCJ 69/81 Abu Aita v The Military

Commander [1983] para 11; HCJ 5973/92 The Association for Civil Rights in Israel v The Minister of

Defence [1993] para 11; Y Dinstein, ‘Judicial Review of the Military Commander Actions in the

Administrated Territories’, Iyunei Mishpat (1972), pp 331-332 [in Hebrew].

27 Vienna Convention on the Law of Treaties [1969] Art 27 (‘a party may not invoke the

provisions of its internal law as justification for its failure to perform a treaty’).

8

connection with the underlying principles governing belligerent occupation”.28

Foremost amongst these is that the fact of occupation does not transfer sovereign

title to the occupant. The Military Commander’s duty to ensure public order and civil life

18. Administrative demolition orders have been issued in relation to buildings in

Dqeiqa on the ground that they had been built without permits. The orders were

described by the Military Commander as 'law-enforcement actions' for enforcing

the applicable regional zoning plan.

19. Since the start of Israel’s occupation in 1967 the Military Commander has failed

adequately to address the local population’s needs in terms of planning, housing

and development. This failure is inconsistent with the object and purpose of the

law of military occupation which aims as far as possible to allow daily civilian life

to continue in occupied territory. Article 43 of the 1907 Hague Regulations

provides:

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 civil

life, while respecting, unless absolutely prevented, the laws in force in

the country.29

20. In accordance with the temporary role of the Occupant as the ‘administrator’ of

the territory, the aim to preserve the laws that were in effect prior to the

occupation is clearly intended to safeguard the legal fabric of the territory.

However, Article 43 recognizes at the same time the possibility that during an

occupation period there might be a compelling need to repeal or change specific

legal arrangements that had existed prior to the occupation. This is further

evidenced from Article 64 of the Fourth Geneva Convention which stipulates that

the Occupying Power may repeal or suspend existing penal laws only where

these constitute a threat to its security.

21. In exercising its powers under to Article 43 of the Hague Regulations, the Military

Commander may only make changes to legislation that are compelled by security

28 Sassoli and Boutruche (2011), note 13 above, p. 5

29 The French text, which is authoritative, refers to an occupant’s duty to restore ‘l’ordre et la vie

publique’ in occupied territory. The English translation of ‘public order and safety’ has been criticized

for not conveying accurately the meaning of the original: see, for instance, E H Schwenk, ‘Legislative

Power of the Military Occupant under Article 43, Hague Regulations’, 54 Yale Law Journal 393 (1945),

note 1.

9

necessities on the one hand, and by the needs of the local population on the other

hand.30

22. This Court has repeatedly referred to the power, and even the duty, of the

Military Commander during a prolonged occupation to change the existing laws in

occupied territory in order to accommodate the changing needs of the local

population:

When a military occupation lasts a long period…the obligation of the

Occupant may even be forced to change the [local] laws, as the needs of

society change over time, and the law must answer these changing

needs... Life does not stand still, and the administration, whether of the

Occupant or of another Power, does not properly fulfill its obligation

towards the [local] population if it freezes the legislation condition and

avoids its adjustment to the needs of time.31

and also:

The life of the [local] population, as the life of an individual, does not

stop and wait, but is in constant motion, which has a development,

growth and change. The military administration cannot ignore all that. It may not freeze life …32

23. The duty to promote the well-being of the local population, encompasses, as this

Court has acknowledged, public order and civil life “in all their aspects”:

In addition to military and security matters, this authority applies also

to various ‘civilian’ circumstances, such as economic, social, education,

sanitation, health, transportation and other matters that the life of a

man in a modern society are related to.

…

the authority of the military administration extends to take all

necessary measures in order to ensure growth, change and

development. Hence the military administration may develop industry,

trade, agriculture, education, health and welfare and similar matters

that concern orderly government, and that are required to ensure the

30 HCJ 393/82 Gamiyat El-Iskan v. the Military Commander (1983), para. 12; Y Dinstein (2009),

note 25 above, 112, 115; M Sassoli (2005), note 25 above, pp. 673-674; C Greenwood, ‘The

Administration of Occupied Territory in International Law’ in E Playfair (ed), International Law and

the Administration of Occupied Territories, Oxford University Press: Oxford (1992), p 26.

31 Judge Zusman, Gamiyat El-Iskan, ibid para 26. (unofficial translation by the authors).

32 Gamiyat El-Iskan (note 30 above), para. 26.

10

changing needs of the population in the territory that is subject to belligerent occupation.33

In this context, special attention should be given to the fact that the Israeli

occupation is a prolonged one, having now been in existence for more than 43

years:

… in a prolonged belligerent military occupation, the needs of the local

population receive more strength. Therefore legislative measures, such

as new taxation or a new rate to an existing tax, that may be

inappropriate in a short-term military administration, may become

appropriate in a long-term military administration.34

24. In order to ascertain that the Military Commander's measures are genuinely

seeking to promote the best interests of the local population, Dinstein suggests

they be compared to parallel arrangements that have been adopted in relation to

the Occupying Power’s own nationals.35 These parallel arrangements may offer a

‘litmus test’ to ascertain whether the Occupant had found it necessary and

adequate to promulgate similar policies for the welfare of its own citizens.36

25. Drawing on Dinstein's suggestion, in this case it is sufficient to look at the

permissive planning policy that the Israeli Government has applied to the nearby

settlement of Carmel. The latter was established in 1984 and already has

benefitted from two zoning plans, even though it was first established in the

absence of any plan. Some of its houses were built without a building permit but

none of them have been demolished.

26. Comparing the planning policy applied to Carmel with that being applied to

Dqeiqa, it is clear that that the latter, which is based upon demolition orders for

an entire community, is not a planning policy that Israel has found appropriate

for its own citizens

33 Gamiyat El-Iskan (note 30 above) paras. 18, 26.

34 Gamiyat El-Iskan (note 30 above), paras 22; On legislative power during prolonged occupation,

see also Dinstein (2009), note 25 above, pp 116-118; Greenwood (1992), note 30 above, p 263.

35 Dinstein (2009), note 25 above, pp 120-123. He first posited this test in Y Dinstein, ‘The

International Law of Belligerent Occupation and Human Rights’, 8 Israel Yearbook of Human Rights

104 (1978), 112. For a critique see A Roberts Prolonged Military Occupation: The Israeli-Occupied

Territories Since 1967, 84 American Journal of International Law 44 (1990), p 94; and E Benvenisti,

The International Law of Occupation, Princeton University Press: Princeton (2nd ed, 2004), pp 15-16.

36 The test was adopted by the Israeli High Court in HCJ 69/81 Abu Aita v The Military

Commander [1983] para 50; See also Judge Haim Cohen (dissenting) in HCJ 337/71, The Christian

Society for the Holy Places v Minister of Defense [1972] PD 26(1) 574.

11

27. Under the laws of occupation, we find that the planning failure imposed

and enforced by the Israeli Military Commander on Dqeiqa to be a breach

of Article 43 of the Hague Regulations; we find the failure of the Military

Commander since 1967 to update the planning zone applicable to Dqeiqa or

to issue a new planning zone unlawful; additionally, we find the subsequent

'enforcement' actions based on this old regional plan – the refusal to grant

building permits and the issuance of demolitions orders – unlawful as well.

Extent of the legislative powers of the Military Commander

28. The Military Commander indicated he intends to introduce a special zoning plan

that would require the demolition of Dqeiqa village and the removal of its

residents to another Palestinian village nearby – Hmede – which it has "zoned".

This is predicated on what he describes as “tribal similarities” between the

residents of the two villages. This would result in a change that would have a lasting effect on the situation in the occupied territory beyond the occupation

period, which is inconsistent with the temporary nature of occupation. In

addition to this, the adverse effect of the Military commander’s proposition on the

residents of Hmede should not be over-looked. We are advised that the ‘zoning

line’ for the plan that exists for Hmede doesn't leave enough room for its current

residents not to mention room for expansion. For the residents of Dqeiqa then,

we are advised the demolition of their homes and community will entail

homelessness and a consequent loss of livelihood as they do not have alternative

sources of income.

29. While the Military Commander is allowed to make some changes in the occupied

territory, the fundamental notion of the laws of occupation is that the Occupying

Power does not possess sovereignty in the occupied territory but only temporary

rights of administration.37 The principle is further elaborated by Article 47 of the

Fourth Geneva Convention which heads the group of Articles in Part II, Section III

concerning the status and treatment of protected persons in occupied territory

and underlines the inviolability of the rights of protected persons as a result of

changes an Occupant may try to make in the institutions or government of the

occupied territory. As the ICRC Commentary to Article 47 explains:

International law prohibits such actions, which are based solely on the

military strength of the Occupying Power and not on a sovereign

decision by the occupied State … the traditional concept of occupation

(as defined in Article 43 of the Hague Regulations of 1907) according to

37 C Greenwood (1992), note 30 above, p 251; M Sassoli (2005), note 25 above, pp 661, 673; O

Ben-Naftali, A Gross and K Michaeli, ‘Illegal Occupation: The Framing of the Occupied Palestinian

Territory, 23(3) Berkley International Law Journal.551 (2005), 592-594.

12

which the occupying authority was to be considered as merely being a

de facto administrator.38

30. Thus, even when acting for the benefit of the local population, the Military

Commander is precluded from promulgating legislation and taking measures in

relation to the occupied territory that have a long-term effect designed to outlive

the occupation itself. The Occupant is restricted to making the changes that are

meant to apply only during the occupation and will normally expire at the end of

the occupation, unless the legitimate sovereign decides to retain it.39

31. Indeed, there is an inherent tension between the Military Commander’s positive

duty under Article 43 of the Hague Regulations to ensure the needs and

development of the local population, and the essence of the occupation as a

temporary situation that does not confer sovereignty or a legal entitlement to

annex the occupied territory. The Israeli Court was also aware of this difficulty,

commenting that:

The scope of the authority of the military administration – in addition

to the security and military consideration – is limited by two principal

parameters: The first, is the obligation of the military administration

to act as an orderly government that takes care of the local population

in all areas of life. The second is the limitations of the military

administration that is not a permanent government but rather a

temporary administration which is not a sovereign but governs by

virtue of the laws of war.40

32. When considering the Military Commander’s powers in a prolonged occupation,

to legislate for the benefit of the local population, the Israeli High Court opined

that the Military Commander has greater latitude in the application of his powers.

In the absence of special considerations, the Military Commander must not introduce any changes that will have a lasting effect on the situation in the

occupied territory beyond the occupation period, unless there is no other

reasonable way to fulfill the needs of the local population and provided these

changes do not lead to a substantial change in principal institutions of the occupied territory.41

38 J Pictet (ed), Commentary Relative to the Protection of Civilian Persons in Time of War, ICRC:

Geneva, (1959), p 273.

39 Y Dinstein, ‘Legislation under Article 43 of the Hague Regulations: Belligerent Occupation and

Peacebuilding’, 1 HPCR Occasional Paper Series (2004), p 9.

40 Gamiyat El-Iskan (note 30 above), para 20

41 Gamiyat El-Iskan (note 30 above), para 27.

13

33. The powers of an Occupant to introduce long-term substantial changes in the

occupied territory were recently discussed in the context of the occupation of

Iraq. Since 2003, the United States and United Kingdom, the Occupying Powers,

introduced major administrative and legislative reforms in various areas in order

to establish a market-based democracy in Iraq. Although these reforms were

largely perceived as serving the benefit of local population, it is largely accepted

that they go beyond the powers granted to the Occupant under the laws of

occupation.42 Indeed in order to promote these reforms, a separate authorization

by the UN Security Council was required.43

34. The circumstances in the case at hand are essentially different. The Israeli

Military Commander has not demonstrated how the irrevocable acts of the

demolition of an entire village and the forcible transfer of its more than 300

residents can be considered for the benefit of the local population.

35. It has been argued that the Military Commander’s decision is based on law-

enforcement considerations. Law-enforcement is clearly part of the Occupant's

duty under Article 43 of the Hague Regulations and Article 64 of the Fourth

Geneva Convention and obviously the local population benefits from the

enforcement of the law in its general sense. As we have shown above, however,

the law-enforcement aspect of the regional zoning plan is unlawful in itself as it

constitutes a planning failure in violation of Article 43 of the Hague Regulation. As

will be demonstrated, this 'law-enforcement' activity is also illegal as it violates

Article 49 of the Fourth Geneva Convention as well as the human rights of the

local population.

36. Further, even if we assume, arguendo, that the Military Commander's policies are

motivated by its duty to promote the well-being of the local population, the

demolition of an entire village that has existed since the Ottoman period, and the

forcible transfer of its residents, amount to an irrevocable act that is beyond the

legitimate powers of the Military Commander. The residents of Dqeiqa affected by

this decision and the Palestinian Authority are strongly opposed to the Military

Commander's actions.

37. We were further advised that the residents of Dqeiqa, after receiving

professional advice on planning, presented a number of alternatives to the

Military Commander that will ensure the needs and development of Dqeiqa and

its residents. As noted above (para.6), although the Military Commander

presented himself to this Court as willing to consider a plan prepared by the

residents, he has not in fact done so.

42 Adam Roberts, ‘Transformative Military Occupation: Applying the Laws of War and Human

Rights’, 100 American Journal of International Law 580 (2006); Eyal Benvenisti & Guy Keinan, The

Occupation of Iraq: A Reassessment, 86 International Law Studies 263 (Blue Book, 2010) 270-271.

43 SC Res 1483 (23 May 2003).

14

38. We find that the Military Commander's policies in relation to Dqeiqa exceed its powers under the laws of occupation. The Military Commander has failed to demonstrate how these policies serve the needs or promote the welfare of the local population. The Military Commander has also failed to justify its decision to perform an irrevocable act which is contrary to the fundamental rule of the law of occupation contained in Article 43 of the Hague Regulations. As the content of that Article forms part of customary international law, this Court is bound to apply it because it is part of the law of Israel.

The prohibition on forcible transfers of protected persons under customary

international law

39. The demolition of Dqeiqa and the forcible transfer of its residents to another

location is a forcible transfer of protected persons which is prohibited under

international law. Israel is bound by the absolute prohibition on forcible transfers

and deportations from occupied territory contained in Article 49(1) of the Fourth

Geneva Convention. Article 49(1) has customary status, and in any clash between

this prohibition and orders of the Military Commander, the customary

prohibition prevails.

40. Article 49(1) of the Fourth Geneva Convention provides:

Individual or mass forcible transfers, as well as deportations of

protected persons from occupied territory to the territory of the

Occupying Power or to that of any other country, occupied or not, are

prohibited, regardless of their motive.

This prohibition was intended to be absolute – regardless of the motive – and

was worded to allow no exceptions.44 Article 49(1) prohibits individual or group

expulsions and covers both transfers to another location within the occupied

territory and deportations to any other destination, occupied or not, outside this

territory.45

41. At the 1949 Diplomatic Conference in Geneva, Committee III which was charged

with negotiations relating to the Civilians Convention settled on a wording which

it felt spelt out with greater clarity the intended prohibition on individual or mass

44 J Pictet (1958), note 38 above, pp 278-280. The exception of ‘evacuation’ in Article 49 of the

Fourth Geneva Convention is inapplicable to the case here as this relates to the temporary evacuation

of civilians for their own protection, or when their presence is deemed as an obstacle to military

operations.

45 Y Dinstein (2009), note 25 above, pp.161-162; For a distinction between deportations and

forcible transfers see the judgment of the International Criminal Tribunal for the former Yugoslavia in

Prosecutor v. Simic, Trial Chamber Judgment, IT-95-9-T, 17 October 2003, at 41, paras 122-123.

15

forcible transfers or transfers within occupied territory, as well as deportations of

protected persons from occupied territory to any other country.46

42. Article 49(2) of the Fourth Geneva Convention recognizes that during a conflict,

when battlegrounds shift constantly, it might be necessary for the good of

population of the occupied territory to move them out of harms’ way.

Nonetheless, Article 49(2) refers to 'imperative military reasons' and the 'security

of the population' (ie the population to be moved), as the only lawful

considerations which may be brought to bear by an occupant in justifying a

decision to relocate protected persons.

43. This is not the case here, as the Military Commander did not invoke any security

argument for the forcible transfer of Dqeiqa residents. Further, Article 49(2)

emphasises the temporary nature of a possible evacuation stipulating that

“[p]ersons thus evacuated shall be transferred back to their homes as soon as

hostilities in the area in question have ceased”. This obviously does not apply to

the permanent demolition of Dqeiqa.

Article 49(1): Customary Status

44. Article 49(1) and the prohibition on forcible transfers of protected persons,

individuals or groups, within or outside occupied territories, is a norm of

customary international law. Professor Meron, former legal adviser to Israel’s

Ministry of Foreign Affairs and President of the International Criminal Tribunal

for the former Yugoslavia (2003-2005, and from November 17, 2011), stated in

1989 that while the customary status of Article 49(1) was “less clear” in 1949, this

prohibition “has by now come to reflect customary law”.47 This conclusion has

been strengthened given these subsequent developments in international law:

a) The International Committee of the Red Cross (ICRC) Study on Customary

International Humanitarian Law found the prohibition on forcible transfers and

deportations of civilians from occupied territories to be a customary rule. Rule

129 of the Study states as follows:

Parties to an international armed conflict may not deport or forcibly

transfer the civilian population of an occupied territory, in whole or in

46 'Report of Committee III to the Plenary Assembly' in Final Record of the Diplomatic Conference

of Geneva of 1949, Vol IIa, Federal Political Department: Berne (1949) pp 827-828. Article 45 was

discussed in the 16th and 40th meetings, pp 664 and 759-760 respectively in the Final Record.

47 T Meron, Human Rights and Humanitarian Norms as Customary Law, Clarendon Press: London

(1989), pp 48-49.

16

part, unless the security of the civilians involved or imperative military

reasons so demand.48

This Court has previously classified the Israeli-Palestinian conflict as an

international armed conflict.49

b) Numerous military manuals, including those of France, Germany, the Netherlands,

South Africa, the United Kingdom and the United States, reiterate the prohibition

on deportations or forcible transfers of civilians from occupied territory.50

c) Article 6(b) of the 1945 Charter of the International Military Tribunal

(Nuremberg) determined that deportation for any purpose of the civilian

population of, or in, occupied territory is a war crime.51

d) The Fourth Geneva Convention’s prohibition on unlawful deportations and

transfers is reiterated in the Statute of the International Criminal Tribunal for the

former Yugoslavia. The customary status of this prohibition has been repeatedly

acknowledged in the Tribunal's case law.52

e) More specifically, in relation to the OPT, the customary status of the Fourth Geneva

Convention, as well as its applicability in the OPT, has been affirmed by various

international tribunals and human rights bodies.53

45. From this list, which is only a sample of practice54, it is clear that the prohibition

on forcible transfer and deportations, as embodied, inter alia, in Article 49(1) of

48 J Henckaerts and L Doswald-Beck, Customary International Humanitarian Law, Volume I: Rules,

Cambridge University Press: Cambridge (2005) at 457. A database containing the rules and a

compendium of practice on which the rules are based is available at http://www.icrc.org/customary-

ihl/eng/docs/home.

49 HCJ 769/02 Public Committee Against Torture v. The Government of Israel (2006) (Targeted

killings case), para 18.

50 See J Henckaerts and L Doswald-Beck (2005), note 48 above, p 458 and also Volume: II:

Practice, part 2 (2005), pp 913-917.

51 UN International Law Commission, ‘Principles of International Law recognized in the Charter

of the Nüremberg Tribunal and in the Judgment of the Tribunal, with commentaries’, II Yearbook of the

International Law Commission 1950, p 376.

52 Article 2(g) of the Statute of the International Criminal Tribunal for the former Yugoslavia; See

also Prosecutor v. Krnojelac, Appeals Chamber judgment, IT-97-25A, 17 September 2003, paras 220,

222-223; Prosecutor v. Stakic, Trial Chamber judgment, IT-97-24-T, 31 July 2003, paras 672, 680;

Prosecutor v. Brdanin, Trial Chamber Judgment, IT-99-36-T, 1 September 2004, paras 540-543;

Prosecutor v. Krsti, Trial Chamber Judgment, IT-98-33-T, 02 August 2001, paras 521-522.

53 As discussed in detail in the Legal Consequences of the Construction of a Wall in the Occupied

Palestinian Territory, Advisory Opinion, ICJ Reports 2004, 136, pp.173-177, paras 90-101.

54 For a comprehensive list see the ICRC’s continually expanding database of State practice with

regards to rule 129, available at http://www.icrc.org/customary-ihl/eng/docs/v2_rul_rule129.

17

the Fourth Geneva Convention, is undoubtedly part of customary international

law.

46. When it comes to the demolition or forcible transfer orders of the Israeli Military

Commander, the latter is part of the executive branch, being ‘the long arm’ of the

Israeli government.55 Accordingly, and as outlined above (paras 11-15), the

Military Commander is always bound by customary international law without

reservation. As Dinstein further stresses:

The Occupying Power is barred from introducing (in the name of

necessity) new legislation that clashes with the Geneva Convention or

the Hague Regulations. Similarly, it cannot leave in place – let alone

implement – domestic legislation that collides with them.56

47. We have demonstrated (para. 27) that the planning failure imposed by the

Military Commander on Dqeiqa cannot be regarded as an act of legitimate

law-enforcement under Article 43 of the Hague Regulations. We now

further conclude that it is impossible to use Article 43 in order to justify a

policy that will amount to forcible transfer of protected persons in

violation of customary international law.

Human Rights Law

48. A planning failure in occupied territory which limits a protected person’s right to

choose his place of residence freezes the development of his personal and public

life. Instead of promoting the well-being of the population living under

occupation, it damages the quality of life and the fabric of the community

49. While relations of the Occupying Power with the inhabitants of occupied

territory are traditionally regulated by international humanitarian law (which

includes the law of occupation), in recent years it has become increasingly

accepted that an Occupying Power must also afford human rights guarantees to

the population of territories under its control. The Government of Israel

expressly recognized this in Article XI (1) of Annex I, Protocol concerning Security

Arrangements, of the Interim Agreement it concluded with the PLO (see above

para. 9).

55 HCJ 302/72 Abu Hilo v. Government of Israel, PD 27(2) 169 (1972), at 176; HCJ 698/80 HCJ

698/80 Kawasme v. Minister of Defence, PD 35(1) 617 (1982), at 636; HCJ 69/81 HCJ 69/81 Abu Aita

v. The Military Commander (1983), para 11; HCJ 5973/92 the Association for Civil Rights in Israel v. the

Minister of Defence (1993), para 11; Y Dinstein, (1972), note 26 above, pp. 331-332 [in Hebrew].

56 Y Dinstein (2009), note 25 above, p. 113. See also C Greenwood (1992), note 30 above, p. 249.

18

50. This Court has repeatedly acknowledged that the human rights of the population

of the occupied territories cannot be disregarded.57

51. In the Ajuri case, while reviewing the legality of assigned residence orders issued

by the Military Commander, the Israeli High Court emphasized the severe damage

caused to the human rights of persons removed from their home:

The fundamental premise is that the forcible transfer of a person from

his place of residence and his forcible assignment to another place

seriously harms his dignity, his liberty and his property. A person’s

home is not merely a roof over his head, but it is also a means for the

physical and social location of a person, his private life and his social

relationships… Several basic human rights are harmed as a result of an

involuntary forcible transfer of a person from his home and his

residence being assigned to another place, even if this assigned

residence does not involve him crossing an international border.58

52. The forcible transfer of a village's residents from their home and their settled

environment creates substantial harm and considerable hardship. It violates

their right to choose a place of residence and adversely affects their right to

property, dignity and an adequate standard of living, including the right to

adequate housing.59

53. In the instant case, consideration must be given to one of the most fundamental

principles of international human rights law, namely that all persons are equal

before the law and are entitled, without discrimination, to the equal protection of

the law. The law must prohibit any and all forms of discrimination and guarantee

effective protection against discrimination on any ground. This is a customary

requirement established in both international human rights and humanitarian

law.

54. Professor Dinstein has stated unequivocally:

The prohibition of discrimination in the exercise of human rights forms

today an integral part of customary international law. It must be

57 See, for example, the opinions of President Barak in the Targeted Killings case (2005), para

18; in Ajuri et al v IDF Commander in the West Bank et al (2002), HCJ 7015/02, paras 14-16; and in

Mara’abe et al v Prime Minister of Israel et al (2005), HCJ 7957/04, paras 24-28.

58 HCJ 7015/02 Ajuri v. IDF Commander in the West Bank (2002), para 14.

59 International Covenant on Economic and Social Rights, Art. 11(1); Universal Declaration of

Human Rights, Art. 25(1). See further ‘General Comment No. 4: The right to adequate housing’, UN

Doc E/C12/1991/4 (1991) and 7 ‘General Comment No. 7: Forced evictions’, UN Doc E/C12/1997/4

(1997), both on Article 11.1 of the ICESCR.

19

perceived as a general procedural legal principle permeating all

substantive human rights, collective as well as individual.60

55. As this Court has ruled, an unlawful discriminatory policy does not need to be

strictly based on race or ethnicity as it is sufficient that it has the effect of racial

discrimination. In the Road 443 case, this Court was concerned with possible

discriminatory effects of security measures:

Despite the understanding to the security need, the use of such security

measures, that creating a complete segregation between the different

populations in using the road and preventing the use of the road from

an entire population group, arises a sense of inequality and even the

association of improper motivations. The effect of the exclusion of a

particular population group from using a public resource is harsh.

Therefore, the Military Commander must do everything possible to

reduce such situations and to prevent the severe damage and the

accompanied sense of discrimination.61

56. Given the planning policy of the Israeli government towards the nearby Jewish

settlement of Carmel, it is difficult to avoid the conclusion that the Military

Commander’s policies enforce a discriminatory legal regime in relation to

Israeli/Jewish settlers and the Palestinians inhabitants of the West Bank in Area

C. While Carmel enjoys a permissive planning policy, that takes into

consideration its current and future needs, the provision of public services, and

where no demolition orders have been made against buildings that were built

without a permit, Dqeiqa has experienced a planning failure since 1967. Building

permits have not granted and its natural development has been suppressed. The

whole village is now subject to demolition orders. This policy exposes the

Palestinians, and only them, to a prejudicial suppressive interference in their

daily life while Jewish settlers are immune from such interference, in the same

territory and under the similar factual circumstances.

57. We conclude that the planning policies of the Military Commander,

including its demolition orders, are discriminatory and inconsistent with

customary international human rights and humanitarian law.

60 Y Dinstein, ‘Dicrimination and International Human Rights’, 15 Israel Yearbook of Human

Rights 11 (1985), p 11.

61 Judgment of President Beinisch in HCJ 2150/07 Abu Safiya v. Minister of Defense (2009) (Road

443 case) (unofficial translation).

20

Conclusion

For these reasons, we conclude that the Military Commander's demolition

orders and planning policy in general in relation to Dqeiqa are unlawful

under customary international law. In particular, these actions:

1. Exceed the powers granted to the Military Commander in the West Bank

by the law of occupation under Article 43 of the 1907 Hague Regulations

which reflects customary international law;

2. Violate the absolute prohibition under customary international law on

forcible transfers of protected persons from occupied territory;

3. Discriminate against and damage the human rights of the Palestinian

villagers, contrary to customary international human rights law.