On February 6, 2001, Ariel Sharon was elected Prime Minister. “The same night,” recalls Professor Arnon Sofer, “Sharon’s people called me and asked if I could meet him as soon as possible, and they asked me to bring my maps with me”. Professor Sofer is an expert of demographic issues regarding the Palestinian population and has been involved in discussions with Sharon about the possibilities of building a wall in the West Bank. Sharon has also told the mayor of the settlement of Ariel that he had been thinking about the “project” since 1973.2

The Wall is justified by Israel in front of the international media as a means of preventing attacks on Israel; hence the Israeli government calls it a “security fence” while developing a strong campaign to justify the Wall and to show its “advantages”. In reality, the origin of the idea of the Wall did not coincide with these attacks but has been a part of Sharon’s plans for many years. The expression “for security reasons” instead has been adopted by Israel to justify this and other measures against the Palestinian people, even if contrary to international law.

The Wall is clearly illegal according to international human rights law and international humanitarian law (IHL). To show the Wall’s illegality, we can analyze it in, at least, two dimensions—one the Wall itself, and two its consequences. However, first addressing the legal framework applicable in the Palestinian case is necessary.

Secondly, Israel ratified several human rights conventions, most of them in 1991.6 It is important to note that the application of human rights treaties to an occupied territory by an occupying power does not imply sovereignty over the land. International law says “Each State Party to the present Covenant undertakes to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present Covenant”.7 Palestinian Territories are not part of Israel but, in fact, they are within Israeli jurisdiction; Israel is a country signatory of these agreements and, consequently, has certain duties towards the occupied population. Israel’s interpretations of some international human rights agreements are only possible by and according to the law, but only if consistent with other rights in the treaties.8

The occupied population is entitled to certain rights according to IHL:

The building of the Wall is illegal; the Wall is meant to ensure control of the Palestinian Territories through various measures.13 According to Hague’s Law “Private property cannot be confiscated”.14 To build the Wall, the Israeli government has ordered vast expropriations of land and has destroyed homes, shops, schools, water networks, and agricultural land. The Fourth Geneva Convention states that:

The Hague’s Law also says that “it is especially forbidden: (g) to destroy or seize the enemy's property, unless such destruction or seizure be imperatively demanded by the necessities of war” It is important to comment that the above quoted “except where such destruction is rendered absolutely necessary by military operations” is, according to several experts in international law, not applicable in this context.17 For instance, the decision to include many settlements on the “Israeli side” of the Wall cannot be justified as a military necessity.

The Wall is affecting the entire Palestinian population and is therefore collective punishment. IHL asserts “Collective penalties and likewise all measures of intimidation or of terrorism are prohibited... Reprisals against protected persons and their property are prohibited”.18 In any case, “security reasons” have limits in human rights, but human rights cannot be limited by random security reasons.

Yet, the Wall will de facto annex some 50% of the West Bank land, justifying this measure overtly with settler presence in these areas. As the Special Rapporteur of the Commission on Human Rights says, “the path of the Wall changes regularly in response to demands from settlers and other political interest groups within Israel. There is no transparency surrounding the construction of the Wall and its final course seems to be known only to an inner circle of the military and political establishment within Israel… Settlements in East Jerusalem and the West Bank are the principal beneficiaries of the Wall and it is estimated that approximately half of the 400,000 settler population will be incorporated on the Israeli side of the Wall. Needless to say, it is extraordinary that such action should be taken to incorporate illegal settlements that form the subject of negotiations between Israel and Palestine… The Wall must be seen in the context of settlement activity and the unlawful annexation of East Jerusalem”.23

The Wall adversely affects one population: the Palestinians. According to B’tselem “the barrier will directly harm at least 210,000 Palestinians, who live in sixty-seven villages, towns, and cities”.24 Nevertheless, at the same time, the Israeli government develops infrastructure projects in the Palestinian Territories (for instance, highways) to facilitate the mobility of the Israeli population. These different policies violate the International Convention on the Elimination of All Forms of Racial Discrimination (UN, 1965). In line with past and current attempts to include within the negotiations, peace process and proposals new borders, the Wall in fact creates a new border between Palestine and Israel, disregarding not only the claims of the Palestinian people to their land but as well all the recommendations on the issue of borders by the United Nations.

The Charter of the United Nations has clarified that, “all Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations”.25 United Nations General Assembly has further declared “the territory of a State shall not be the object of acquisition by another State resulting from the threat or use of force. No territorial acquisition resulting from the threat or use of force shall be recognized as legal”.26 It is important also to take in consideration the comment by the Special Rapporteur, “annexation of this kind goes by another name in international law - conquest. Conquest, or the acquisition of territory by the use of force, has been outlawed by the prohibition on the use of force contained in the Charter of the United Nations”.27

The Wall is the combined product of the settlements and closure policies, adding a permanent barrier to the barriers already put in place through checkpoints. In addition, it is a permanent expropriation of private property.

The Wall has already affected the living conditions of people; therefore, some of their rights have also been affected in the areas where the Wall has been built. There are no reasons to think that in the other communities where the Wall will be built, it will be any different. The “Bertini Report”28, the most important and known report about the humanitarian situation in Palestine by the UN, has shown without a doubt how closures, sieges, curfews and checkpoints are strategies that have affected the access to health, education and work, and have also affected the right to the freedom of movement and property. The report states:

The Wall is another step in the same strategy. Hence, it is possible to foresee and to affirm that the future consequences of the Wall regarding the rights of the people will be the same, if not worse. As is shown below, in the places where the Wall has been built, the rights to freedom of movement, property, health, education, work, food, water and freedom of religion are not guaranteed as long as the Wall exists. Yet also, the destruction of the Wall itself will not be enough to guarantee these rights.

Human rights law states, “Everyone has the right to freedom of movement and residence within the borders of each State”.30 Furthermore, “Everyone lawfully within the territory of a State shall, within that territory, have the right to liberty of movement and freedom to choose his residence”.31

The Fourth Geneva Convention states, “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”.32

The limitations to the right of movement are clearly affecting all Palestinian activities. In relation to IHL, the impact of the Wall in Qalqiliya, for instance, is comparable with a “mass forcible transfer” as the population has no possibilities to continue life. “Qalqiliya, a city with a population of 40,000, is completely surrounded by the Wall and residents can only enter or leave through a single military checkpoint open from 7 a.m. to 7 pm”.33

According to PENGON’s information “humiliation is a common experience at entrances to encircled cities or the ‘gates’ along the Wall; Israeli soldiers individually determine who is ’permitted’ to cross and whether or and when not the gates will be open. There have already been documented instances of beatings, humiliation and physical abuses”. In the village Azzun Atma, in the district of Qalqiliya, one can cross through the gates of the Wall only twice a day for intervals less than 15 minuets--crossing times are never consistent. Furthermore, crossing is entirely dependant on whether or not the Israeli military arrives to open the gates.

The Universal Declaration of Human Rights clearly states: “Everyone has the right to own property alone as well as in association with others. No one shall be arbitrarily deprived of his property”.34 The two most important covenants of human rights also recognize that “All peoples may, for their own ends, freely dispose of their natural wealth and resources”.35

During the first phase of the Wall alone, 102,320 olives trees, as well as schools, 85 commercial buildings, some homes, and 30 kilometers of water networks have been destroyed a while 14,680 dunums of land have been razed or confiscated.36 The Wall’s first phase affects over 65 communities.37

The land between the Wall and the Green Line was declared a “seam zone”, or closed military area, on the 2nd of October, 2003. The order prohibits the passage of all people into this area, but then immediately exempts Israelis from this restriction and clarifies that Palestinians will be permitted into the zone only during work hours and if they obtain permits. This theft and annexation of Palestinian land to Israel has thus furthered Israeli control over the people. In defiance to the illegitimate attempt to annex their land, the farmers of Barta’a ash Sharqiyya refused to apply for permits. As punishment for their resistance the military locked the Wall’s gates for 15 days consecutively, bringing the entire village under complete closure without access to water and food supplies.

“The right of everyone to the enjoyment of the highest attainable standard of physical and mental health” is contained in international law. IHL says that, “To the fullest extent of the means available to it, the Occupying Power has the duty of ensuring and maintaining, with the cooperation of national and local authorities, the medical and hospital establishments and services, public health and hygiene in the occupied territory, with particular reference to the adoption and application of the prophylactic and preventive measures necessary to combat the spread of contagious diseases and epidemics. Medical personnel of all categories shall be allowed to carry out their duties”. But, despite these clear duties of the occupying power, Israel does not fulfill them but instead is seriously violating the right to health. Regarding access to medical services, the Bertini Report says:

According to reports on the impact of the Wall in some communities, it is possible to conclude that these kinds of violations will become permanent due to the Wall. Right now, due to the Wall, numerous villages and houses in these areas are not accessible to doctors and isolated from hospitals or health and medical clinics. For instance, according to PENGON’s information, “because of the Wall, the UNWRA hospital in Qalqiliya is closed off to all refugees in the northern West Bank (except Qalqiliya residents) to whom it was supposed to provide medical assistance”. In Azzun Atma, the restrictions have been harsh as well with limits placed on the visits of medical personnel to the community—the village doctor who once visited Azzun Atma two days a week is now restricted to a mere four hours per week.

The children of Ras Tira and Daba, villages in the district of Qalqiliya, are often unable to attend their schools in neighboring communities as the Wall isolates their villages. In Jubara, south of Tulkarem, the opening of the Wall’s gates is often delayed for hours, forcing students to wait at the gate after school until returning home to their village. In Baqa ash Sharqiyya, north of Tulkarem, written permission is demanded of school teachers to allow them to pass through the pedestrian gates on their walk to work. In Azzun Atma young students have been victims of harassment from Israeli soldiers to the point that some have withdrawn from school.

According to the Universal Declaration of Human Rights, ”everyone has the right to work, to free choice of employment, to just and favorable conditions of work and to protection against unemployment”. The right to work includes “the right of everyone to the opportunity to gain his living by work”.46  With the construction of the Wall, the land with the main agricultural potential will be on the “Israel side”. The October 2nd Israeli military order, discussed above, has furthered the complete inability for farmers in over 50 villages from reaching their crops which are isolated by the Wall. This has amounted to severe economic losses in all communities. It is also reported that already some 600 shops and enterprises have closed in Qalqiliya as a result of the construction of the Wall.47

According to PENGON’s report “Nazlat ‘Isa, which is trapped between the Wall and the '67 Green Line, has had its entire commercial market destroyed for the building of the Wall. East of the Wall’s ‘isolation barrier’ that is being built in this area and a top of village lands will be the ‘Trans-Israel Highway’, connecting the network of Israel and settler roads.…The land confiscation, destruction, and severe restriction of movement will mean the loss of at least 6,500 jobs”. In Tulkarem due to the Wall, people cannot travel for work, “which has caused the unemployment rate to swell from 18% in 2000 to 78% in the spring of 2003”.48 In Qalqiliya district the Wall’s closure brought the demise of the guava harvest for most farmers while in Jubara village only those farmers with written permission have been allowed to cross to cultivate the land. In Jayyus, 116 farmers refused to apply for the permits, and Israel is completely prohibiting them from passing onto their land.

As far as the plight of the farmers is concerned, “the main constraint, as in most other areas of employment and production, is access. Farmers are unable to access their fields because of blocked roads, including dirt roads that have been dug up by the IDF, threats and violence from nearby settlers, and new requirements for permits that in some cases are needed to reach fields on the other side of bypass roads”.50 After the Wall, these kinds of constraints will be permanent, especially as Israel’s proposal states that every farmer needs a special permit to cross to his/her own land. For instance, “approximately 20,000 individuals, in some 3,175 families, will be located east of the Wall but with their agricultural lands to the west, losing their livelihoods, sustenance, and heritage”.In Barta’a ash Sharqiyya, soldiers have taken food away from farmers, arguing that only a certain quantity of food, determined by the soldiers, will be allowed through the Wall’s gates. In this way the soldiers are deciding what amount of food is sufficient for each family.

The Wall has affected communities’ access to water in the following ways: destruction of water pipes for the lands, destruction of water pipes that cannot be rerouted with the construction of the Wall, communities not able to access wells, tankers not able to access wells and communities, and the destruction of cisterns and reservoirs.52In the Wall’s first phase, “36 groundwater wells and over 200 cisterns are isolated from their communities by the Wall with an additional 14 wells threatened for demolition in the Wall's ‘buffer zone’. Upon laying the groundwork for the Wall, Israeli bulldozers have destroyed some 35,000 meters of water pipes and 25 wells and cisterns, which were for both agricultural and domestic use.

Human Rights Law says that, “Everyone shall have the right to freedom of thought, conscience and religion. This right shall include freedom to have or to adopt a religion or belief of his choice, and freedom, either individually or in community with others and in public or private, to manifest his religion or belief in worship, observance, practice and teaching”.53 And IHL says, “The Occupying Power shall permit ministers of religion to give spiritual assistance to the members of their religious communities”. For instance, in Bethlehem people cannot go to Rachel’s tomb because of the Wall. The restriction to movement also affects access to sacred places and mosques.

There are numerous examples to show how the Wall is against this Convention. The Wall divides populations on the basis of race and ethnicity. The route of the Wall itself is not only segregating but also discriminating on racial grounds, as the interests of the illegal Israeli settler population are considered much higher than the interests and rights of the Palestinian population. In most cases farmers are denied access to their lands and merchants are cut off from markets while the Wall prevents customers from reaching them. Also in the first phase, 16 villages are separated from the West Bank as they lie between the Wall and the Green Line—deprived of movement for basic services such as health, education, or work.

Can the word “genocide” be used in the context of the Israeli construction of the Wall in the West Bank? According to Human Rights Law:

Israel has signed and ratified this “Convention on the Prevention and Punishment of the Crime of Genocide” (UN, 1948). Two questions may arise regarding the use of this word in the context of the Israel’s treatment of the Palestinian people: First, is there an “intention to destroy” Palestinians on the part of the Israeli Government? Second, what exactly does the word destroy mean? Does it refer only to physical destruction or does it have a broader meaning, which might include killing people?

Regarding the meaning of “destroy”, these authors also asked themselves: “Does ‘as such’ refer to the preceding word ‘group’, meaning the destruction of people as a communal group, but not necessarily destruction of the individual members?” One of the characteristics of the definition of genocide includes “forcibly transferring children of the group to another group” (category E). This practice does not kill members of the group but affects the survival of the group as a group, and it also is genocide.

The daily violations of human rights by the Israeli Defense Force (IDF) are not punished by the State of Israel, which demonstrates the agreement of the State with its military measures. For example, “of the 2,235 Palestinians that have been killed by the IDF, indictments against soldiers have been handed down only eight cases. No one has yet been convicted”.60 The Judge Advocate General, Major General Menahem Finkelstein, stated that "it is impossible to carry out 2,000 investigations into 2,000 cases of death when, in a large percentage of the cases, we are talking about military activity par excellence”. Therefore, he decides to stop investigating cases of killing, without any presumption of innocence of the victims.

Some other measures by IDF and the Israeli government show the targeting of Palestinians as a particular group, as such: use of racist slurs, attacks on sacred places, destruction of religious buildings, demolition of Palestinian homes and razing of agricultural land, denial of residency rights, mass arbitrary arrests, illegal control and exploitation of Palestinian natural resources, verbal abuse with references to the Palestinian as a Palestinians, prevention of access to health services including prenatal, and postnatal care and massive restrictions on Palestinian construction. It is necessary to remark that IDF depends on the government and is its responsibility for action or omission. This impunity and these military measures indicate that there is the “intention to…”

The Israeli government may not have explicitly declared as its goal the destruction of the Palestinian people, but the consequences of its actions—such as those from the Wall—contribute to the destruction of Palestinians as a group. This is genocide. It is impossible to avoid the conclusion that the Israeli government is attempting to destroy Palestinian community as a community. Therefore, the category “genocide” can be applicable in the Palestinian case, even when referring to the impact of the Wall (categories B and C quoted).

The “Convention on the Suppression and Punishment of the Crime of Apartheid” clarifies that Apartheid “is a crime against humanity and that inhuman acts resulting from the policies and practices of apartheid and similar policies and practices of racial segregation and discrimination, as defined in article II of the Convention, crimes violating the principles of international law, in particular the purposes and principles of the Charter of the United Nations, and constituting a serious threat to international peace and security”. Apartheid is, according to International Law, a crime against humanity and the States “declare criminal those organizations, institutions and individuals committing the crime of apartheid”.64

Regarding genocide, “whether committed in time of peace or in time of war, is a crime under international law which they (the parties in the Convention) undertake to prevent and to punish”.65 The categories that have been punishable include not only genocide itself but also conspiracy to commit genocide; direct and public incitement to commit genocide; attempt to commit genocide; and complicity in genocide.66

In addition, the Rome Statute of the International Criminal Court (ICC)67 states that “extensive destruction and appropriation of property, not justified by military necessity and carried out unlawfully and wantonly” is a war crime.

After having visited the West Bank and having red several papers on behalf of various NGOs - both Palestinian and international - it is evident that the Wall is illegal, according both to International Humanitarian Law and International Human Rights Law. It is also evident that using words such as genocide or Apartheid while talking about the Wall is not a legal mistake.

The promise of security—for Israelis--through the building of the Wall is a ploy, as peace does not depend on military solutions or “security” measures but on an end to the Occupation and Israel’s acceptance of the internationally recognized rights of the Palestinian people. “…It is doubted by some who point to the fact that most suicide bombers have passed through checkpoints and that the Wall will not deter persons determined to cross into Israel to commit acts of terrorism”.69 Other arguments against the notion of the Wall as security are the date of its original planning as a project since 1973, that. the route of the Wall demarcated by the settlers, the construction of the Wall through the Jordan Valley, and the continued deviation from the Green Line. It is also very simple and naive to say that there is a conflict of rights: the right to life of the Israeli as opposed to the right to property of the Palestinians. Israel explained and defended the construction of the Wall to the United Nations arguing that “land requisitions issued to enable the building of the Barrier are proportionate given the number of deaths and injuries sustained by Israeli citizens and are carried out in accordance with both international and local law” and maintains that, “the completion of the Barrier will in fact, allow the Israel Defense Forces (IDF) to reduce it presence in the West Bank and remove roadblocks and checkpoints, thereby improving overall humanitarian conditions in the West Bank”.70

All High Contracting Parties of the Geneva Conventions, including Israel, have the duty to ensure the application of IHL, which states “The High Contracting Parties undertake to respect and to ensure respect for the present Convention in all circumstances”.71 Since the Wall is illegal, all of the states, which are signatories of the Geneva Conventions, have the responsibility to intervene in stopping the Wall and its implications on Palestinians. Also, in the “International Convention on the suppression and punishment of the crime of Apartheid” all the States Parties have responsibility to prevent and punish the Apartheid policies and practices. As the link between the Wall and Israel’s Apartheid policies are clear, it is important to remark that

“International criminal responsibility shall apply, irrespective of the motive involved, to individuals, members of organizations and institutions and representatives of the State, whether residing in the territory of the State in which the acts are perpetrated or in some other State”.72 The individuals have to be punished “whether or not such persons reside in the territory of the State in which the acts are committed or are nationals of that State or of some other State or are stateless persons”. The States Parties of the Convention quoted, “may call upon any competent organ of the United Nations to take such action under the Charter of the United Nations as it considers appropriate for the prevention and suppression of the crime of apartheid”. Despite these clear laws and duties under IHL and in the convention about Apartheid, the so-called “international community” continues to remain silent about the Palestinian situation and also about the Wall.

Consequently, the Special Rapporteur, “submits that the time has come to condemn the Wall as an act of unlawful annexation in the language of Security Council resolutions 478 (1980) and 497 (1981) which declare that Israel’s actions aimed at the annexation of East Jerusalem and the Golan Heights are ‘null and void’ and should not be recognized by States”.75

Beyond the construction of the Wall, the worst consequences of its building would be the forced expulsion/transfer of the Palestinian population through unsustainable living conditions, as is rapidly happening through the Wall’s first phase and, as stated by the Special Rapporteur, “The Wall will therefore create a new generation of refugees or internally displaced persons”.76 The international community spends a significant amount of time talking about terrorism but forgets, sometimes deliberately, to talk about the Occupation. In the case of Palestine, those who do not want to talk about occupation do not have any moral right to talk about terrorism.

The current system of human rights is partially due to the Holocaust and other crimes committed during the Second World War. This system sought protects the victims of war: everyone through Universal Declaration of Human Rights (1948); civilian population, through the Fourth Geneva Convention (1949); European refugees, through the “Convention relating to the Status of Refugees” (1951); national, ethnical, racial or religious group, through the “Convention on the Prevention and Punishment of the Crime of Genocide” (1948). Despite of this great attempt to protect the dignity of the people, in the beginning of the new millennium, some practices, as the Apartheid policies, continue.

Recently there have been attempts by the international community for the termination of the Wall, such as the failed attempt of the UN Security Council Resolution against the Wall which was blocked by the veto of the United States. Other attempts include the Resolution of the General Assembly against the Wall (October 21, 2003), the report by the United Nations confirming the illegality of the Wall (November 24, 2003), and the application of the General Assembly to the International Court of Justice which made a judgment on the legality of the Wall (December 7, 2003).

The cited report recognizes that in some places the Wall will be 22 kilometers away from the Green Line and looks to include 320,000 Israeli settlers. The report further remarks that the expropriations of land often take effect the same day the orders are signed and thus farmers are not given any prior notice. Many of the gates open only three times a day and for barely 15 minutes at a time. It concludes by pointing out that, up to this date, 30 towns have be separated from health services, 22 from schools, 8 from water sources, and 3 from available electrical service.

The Israeli State refuses to apply international law in the Occupied Palestinian Territories and also in Israel. The Israeli state, as a theocratic state, therefore as no modern state, refuses to recognize both the civil and political and social and economical rights of the Palestinian population. With two kinds of citizenship, the core of the rights do not depend of the relationship between individual persons and the state but religious persons and the state, which means the negation of the democracy.

 Israel refuses to recognize its condition as an occupier of the West Bank and Gaza Strip. If here is their promised land, how is it possible to be the occupant of their own promise land? The reason may be the most important to Israel: the application of the international law not only means more responsibility of expenditures under the Occupation, but the negation of Israel as a Jewish state. Beyond the Wall, the big dilemma is how to be a modern state –with all of its consequences- and the same time to be a religious state. And the main victim of this dilemma is the Palestinians.