The establishment of the settlements leads to, and results in, what seem to be unavoidable additional violations of both international humanitarian and human rights law.
Public land, natural resources and environment
In Article 55 of the Hague Regulations, the idea of the temporary nature of the occupation is applied to public lands, forests and real estate. The occupying power does not obtain ownership of immovable public property in the occupied territory, due to its role of temporary administrator whose responsibility is to preserve the status quo ante of the occupied territory. The occupying power can nevertheless make use of public property, including natural resources, but in a manner that safeguards its value. The idea is that the occupying power can pick the fruits without cutting down the tree. However, the proceeds of these assets can only be used for the administration of the occupied territory. This provides a framework in which the occupying power is allowed to serve its military needs while maintaining the assets of the occupied people, as well as the status quo ante, until the conflict is resolved.
According to Article 55 of the Hague Regulations, the use of public land for settlement construction is forbidden on account of the major changes inflicted to the occupying territory. The construction of settlements turns open landscape into built-up areas in an irreversible manner. It is irrelevant whether the acquisition of land was done in accordance with Israeli, Jordanian or Ottoman law; an occupying power cannot create permanent changes in the occupied territory, unless these are demanded by absolute military needs or undertaken for the benefit of the local population.
The settlements as well as Israel’s usage of natural resources, e.g. water, permanently affect the natural resources of the occupied Palestinian territory and bring about negative effects on the environment in violation of the obligations established under Article 55 of the Hague Regulations.
Read more about the Hague Regulations To Article 55 of the Hague Regulations
Article 55 of the First Additional Protocol further regulates the conduct of hostilities in relation to the environment stating that care shall be taken in warfare to protect the natural environment. It is also a norm of international customary law that the natural environment should not be attacked or destroyed, unless strictly required by military necessity.
The term “natural environment" includes agricultural areas, drinking water, forests and other vegetation, as well as fauna, flora and other biological elements. The extensive construction of urban settlement areas have radically changed and destroyed the traditional Palestinian natural environment and landscape.
Destruction and seizure of private property
The construction of settlements, the Wall, roads, railways and other infrastructure connected with the settlement project, have required the appropriation and destruction of private Palestinian land.
The basic rule in IHL, as formulated in the Article 46 of the Hague Regulations, is that private property should be respected. Additionally, the property of municipalities, religious, charitable, cultural and educational institutions should be treated as private property, even if it is state property . It is forbidden to destroy or seize private enemy property, unless imperatively demanded by the necessities of war . Private property cannot be confiscated and requisitions should only be demanded for the needs of the army .
Destruction is also forbidden underArticle 23(g) of the Hague Regulations and Article 53 of the Fourth Geneva Convention, unless rendered absolutely necessary by military operations. To the Hague Regulations, Art 46
To the Hague Regulations, Art 23(g)
To the Fourth Geneva Convention, Article 53
Violation of the obligation to ensure public order
The construction of settlements and connected infrastructure projects constitute a violation of Article 43 of the Hague Regulations, which requires the occupying power to take all measures within its power to ensure public order and safety, while respecting, unless absolutely prevented, the laws in force in the country.
While Article 43 confers to the occupying power the authority of discipline issues regarding civilian life in the occupied territory, it also sets clear limits for such a power. It has to respect the laws in force in the country.
This provision also provides the occupying power, particularly in the case of a lengthy occupation, with the right and in some circumstances the obligation to initiate projects for the welfare of the local population, in order to prevent stagnation of the local economy and damage to the existing infrastructure. However, these projects have to be undertaken with the respect for the existing laws and the status quo before the occupation.
Israeli settlements, while not being of benefit to the local population, have also meant changes to the laws in force in the oPt. They can also be said to undermine public order and the safety of Palestinian civilians in the oPt. The construction and presence of settlements in the oPt has brought about confrontations, often violent, between settlers and Palestinians. When Israeli civilians attack Palestinians, the Israeli authorities employ an undeclared policy of leniency and compromise towards the perpetrators, which fails to fulfil the obligation of the occupying power to ensure public order.
To the Fourth Geneva Convention, Article 43
Violation of the prohibition of discrimination
The settlement project violates the prohibition against discrimination based on Articles 3(1), 13 and 27 of the Fourth Geneva Convention. While there is no obligation under IHL to provide the same level of protection, rights and services for people in occupied territory as in the state’s own territory, the influx of Israeli citizens into the oPt has created a discriminatory system, since two national groups present in the same territory are unequally treated.
Israeli settlers are in all senses Israeli citizens with full rights. Their situation is not any different from that of an Israeli living inside the Green Line. The Palestinians, on the other hand, are not Israeli citizens and they are subject to military rule. One example of discrimination is the dual system of criminal law which violates the principle of equality before the law. While Israeli citizens on the oPt, for example the settlers, enjoy guarantees of due process under ordinary Israeli criminal law, such rights are denied to Palestinians under military jurisdiction.
Discrimination also takes place in other forms, such as the system of separate roads in the West Bank, forbidden access for Palestinians to lands controlled by the settlements, development of and access to public services like water and electricity supply, etc. Palestinians also face discriminatory planning restrictions, making it virtually impossible to expand residential areas and to challenge the construction or development of settlements.
To ICRC and Article 3(1)
To ICRC and Article 13
To ICRC and Article 27
Exceptions to the prohibition of destruction and seizure of property
The exceptions to the prohibition of destruction and seizure of property equally apply to public and private property. Property can be seized for a project benefiting the local population or to ensure public order and safety according to Article 43 of the Hague Regulations, or in case of an absolute military necessity.
The local population in the oPt is the Palestinians. The fact that in the same territory Israeli settlers can be found does not change the situation , as their residence in the oPt is contrary to IHL. The Palestinians of the oPt cannot be said to benefit from the seizure of their land for the purpose of constructing settlements.
If built to serve the needs of the occupying army, for instance the construction of an army base, building projects could fall under one of the exception of military necessity. However, if the military base is then transformed into a civilian settlement, this exception is no longer valid. After the Elon Moreh case , Israel officially stopped using the justification of military needs. Thus, none of the exceptions to the fundamental rule of respect for property in occupied territory are applicable to the seizures of Palestinian lands for the construction of settlements.
Read more about the Elon Moreh-case
Additionally, infrastructure construction on occupied territory needs to fall under one of the above mentioned exceptions to be legal under IHL. Infrastructure projects connected to settlements do not meet the required criteria and are therefore illegal. Examples of such infrastructure are bypass roads, constructed to benefit the civilian settler population, and the light railway through East Jerusalem.
The light rail in Jerusalem can be said to benefit a very limited portion of the occupied population, since it crosses through one Palestinian neighbourhood. The route of the rail is not planned to serve as much of the occupied population as possible, or connect the Palestinian areas of East Jerusalem, conversely the transportation system aims to connect the settler population with West Jerusalem. Serving the occupied population is not one of the goals of the project and only some incidental benefit might emerge for a minor portion of the Palestinian population of East Jerusalem.
Read more about the Jerusalem light rail
Restrictions on freedom of movement
Under Article 27 of the Fourth Geneva Convention, protected persons are entitled, in all circumstances, to respect for their persons. This includes the right to freedom of movement. However, the freedom of movement of civilians may be restricted, or even temporarily suspended, if circumstances so require - even though the basic idea in the Fourth Geneva Convention is that the personal freedom of civilians should in general remain unimpaired. Restrictions would have to be motivated by military necessity or public order to be legitimate under IHL .
Checkpoints and other physical obstacles coupled with the presence of the Wall, of forbidden roads and the inaccessibility of areas under settlement jurisdiction, all restrict the right of Palestinians to free movement throughout the oPt in a way that can not be considered justified in relation to military necessity ot public order.
To ICRC and Article 27