Article by Rana Sahar,
Introduction
Israel’s land planning policies have led to a rapid growth of settlements in the West Bank. Meanwhile, Palestinian use of land in the region is severely restricted. The expansion of Israeli settlements within the West Bank violates international law. So do the policies in the West Bank which prevent Palestinians from accessing their land and resources. But Israel maintains that it is bound to uphold the international covenants it ratified only in the lands over which it is sovereign, not in the West Bank. And yet, Israel exercises nearly full control over sixty percent of the territory, supports the expansion of settlement communities there, and uses the territory’s resources for the benefit of its citizens. Israel’s interpretation of its responsibility under the covenants differs from the general consensus of the international community. However, Israel’s decades-long stance highlights a limitation that exists within international law to provide meaningful protection for vulnerable populations in protracted conflicts, where the territorial boundaries of a state are blurred. This article assesses Israel’s land allocation policies in the context of its varying interpretations of international law.
Background
The 1995 Israeli-Palestinian Interim Agreement on the West Bank and Gaza Strip divided the West Bank into Areas A, B, and C, allocating to each zone a different combination of Palestinian or Israeli security and civil control. While most Palestinians reside in Areas A and B, Area C comprises approximately sixty percent of the West Bank's territory, including most of its valuable resources. Israel exercises nearly full control over Area C, including over civil matters such as infrastructure development, planning, and construction. Land use in Area C is subject to government approval and permits. The borders between Areas A, B, and C run through some Palestinian communities established well before 1995, and, in certain instances, cut communities off from their own farmlands. In addition, Area C is recognized to house much potential for improved economic prosperity for all Palestinians in the West Bank—not just those residing in Area C—because of the rich land and resources available for use.
Human rights advocacy groups have documented the land planning policies implemented in the West Bank’s Area C, which restrict access to the land for Palestinians while greenlighting this same access for Israeli residents. For example, the government has categorized hundreds of thousands of acres in the West Bank as public land since 1967. Half of this land has been allocated for use by residents, but less than one percent of these allocations are awarded to Palestinian residents. The government has also designated approximately twenty percent of the West Bank as military zones, restricting access to the land for Palestinians. In the portion of Area C that remains unrestricted, land use is subject to building permit approvals, and these are extremely difficult to obtain. Some Palestinians have built structures without Israel-issued permits, but Israel’s policy is to demolish homes and structures that are not officially approved. This has sparked criticism from U.S. elected officials in the past. In 2015, Amnesty International reported that only about one percent of Area C had been planned for Palestinian development by the Israeli Civil Administration.
Meanwhile, Israeli settlements are accelerating in growth. In August of 2019, Israel approved the construction of over 2,000 settlements in the West Bank in a period of a few days. New home approvals for Israeli settlements have quadrupled from 2015-2016 to 2017-2018. Back in 2014, UNOCHA reported that seventy percent of Area C was located within the boundaries of Israeli Settlement Regional Councils, excluding Palestinians from using or developing the land. Regional Councils are local Israeli government entities governing rural settlements. Regional Councils are responsible for servicing and planning settlement communities, and are comprised exclusively of representatives of the Israeli settlement communities.
Settlement expansion harms Palestinian communities. The UN Human Rights Council concluded in a 2013 independent fact finding report that Israeli settlements are established “for the exclusive benefit” of Israeli settlement communities and are “maintained and developed through a system of total segregation between the settlers and the rest of the population…” Settlement territories cut off Palestinian villages from their land and water sources. Water is preferentially allocated to Israeli settlements, privately owned Palestinian property has been seized by the Israeli government, Israeli settlements extract natural resources in the West Bank, and security restrictions impede freedom of movement and isolate Palestinian communities from one another.
International law according to whom?
Israel’s land allocation policies in the West Bank violate international human rights law, including the International Covenant of Civil and Political Rights (ICCR) and the International Covenant of Economic Social and Cultural Rights (ICESCR). These covenants prohibit discrimination, protect liberty of movement, and recognize that all peoples have the right to self-determination, the pursuit of economic development, and the utilization of their natural wealth and resources. Israel has ratified them both. However, despite the understanding otherwise, Israel has asserted that it is not bound by those covenants in the West Bank, maintaining that ICESCR and ICCR apply only to the land over which Israel is sovereign, not to the territories it occupies or engages in armed conflict. Human rights advocacy groups have recognized the limitations within international law to provide remedies for protected populations like the Palestinians in the West Bank, and have highlighted Israel’s conflicting approach to the interpretation of international law in this context.
Confusingly, the argument Israel uses to absolve the government of its duties under ICCR and CESR in the West Bank—that Israel is not sovereign—makes settlement expansions a violation of law because if Israel is not sovereign in the West Bank then it is an occupying force. Article Forty Nine of the Fourth Geneva Convention states that an occupying power “shall not deport or transfer parts of its own civilian population into the territories it occupies,” making settlement expansion, which necessarily involves the transfer of Israeli civilians from Israel to the West Bank, a breach of the convention. Furthermore, Prime Minister Benjamin Netanyahu has even signaled support for the formal expansion of sovereignty to settlement communities in the West Bank.
It is notable that Israel’s land-use policies, which have kept much of West Bank Area C up for grabs for Israeli communities almost exclusively, created the precise environment which paved the way for extensive settlement expansion. So, the exemptions Israel claims as an occupier rather than a sovereign empowers it to allocate land without obligations under international human rights law, extending its borders into the West Bank in all but name.
It should be mentioned, of course, that the political circumstances in the region are complex, and much of the complexity stems from a decades-long armed conflict. But this is precisely why clearer standards should apply. The blurred lines between temporary occupation and indefinite conflict, and entitlement to territory without equal responsibility towards all of a territory’s inhabitants, allow governments to skirt their duties under international law by comfortably inhabiting a gray area indefinitely and with little consequence. This renders international law of little use in protecting marginalized communities. There should be clear and binding interpretational standards regarding the application of human rights law in armed conflicts, as well as definitive consequences to states which ratify but do not uphold the spirit of international covenants.