Israel's obligations as the Occupying Power in the OPT are set out in the Regulations annexed to the Fourth Hague Convention Respecting the Laws and Customs of War on Land, and the Fourth Geneva Convention Relative to the Protection of Civilian Persons in Time of War. Unlike the Hague Regulations, the applicability of which Israeli authorities have accepted due to their customary nature, Israel contests the de jure applicability of the Fourth Geneva Convention to the OPT. However, the vast majority of the international legal community has rejected these claims, and has repeatedly reiterated that Israel cannot evade the obligations it committed to undertake as a High Contracting Party to the Convention.
International humanitarian law obligates parties to uphold the principle of distinction between civilians and civilian objects on one hand (including schools and public government buildings) and combatants and military targets on the other. According to Article 56 of the Hague Regulations,
the property of municipalities, that of institutions dedicated to religion, charity and education, the arts and sciences, even when state property, shall be treated as private property.
The article further stipulates that destruction or wilful damage done to institutions of this nature is forbidden and should be made the subject of legal proceedings.
In addition to prohibiting direct attacks on civilians, international humanitarian law prohibits indiscriminate and disproportionate attacks. Indiscriminate attacks include those which although directed at a military target, are carried out without regard to the likely consequences for civilians. Thus it remains the duty of a military commander to ensure that the target is in fact a legitimate military objective, and that it remained so at the time of attack. Even if a number of distinct military objectives are located in an area containing a concentration of civilians or civilian objects, they may not be the subject of a single area attack.
The principle of proportionality is also a fundamental rule of customary international law and should always be observed. Thus a party to a conflict may not damage or destroy civilian property if the damage is excessive compared to the military advantage to be gained. The systematic and disproportionate nature of Israeli destruction of Palestinian property makes clear that the Israeli argument that its operations are “isolated incidents” is a fallacy. Further, some instances of property destruction appear to be reprisals against Palestinian civilians, which are prohibited by Article 33 of the Fourth Geneva Conventions, and Article 50 of the Hague Regulations.
While some of the prohibitions set down by both the Hague Regulations and Fourth Geneva Convention permit no exceptions because of their humanitarian value, other provisions stipulate that the prohibition on the commission of certain acts, such as property destruction, is subject to exceptions. However, like all exceptions in international humanitarian law, it must be strictly applied. Hence, the destruction of civilian property, if not justified by military necessity, violates Article 53 of the Fourth Geneva Convention that prohibits any destruction by the Occupying Power of real or personal property, except where such destruction is rendered absolutely necessary by military operations. It also violates Article 33 of the same Convention, which prohibits reprisals and collective penalties against protective persons and their properties. Moreover, it constitutes a grave breach under Article 147 of the Fourth Geneva Convention.
International law also grants special protection to certain objects such as cultural objects. According to Article 1 of the 1954 Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict, they include movable or immovable property of great cultural importance and centres containing a large amount of cultural property. While Article 4 of this Convention permits that the general protection to cultural property can be waived where “military necessity imperatively requires such waiver,” special protection may be withdrawn only in exceptional cases of unavoidable military necessity. The occupying powers have also similar duties.
Human Rights Law
The applicability of international humanitarian law during an armed conflict does not preclude the application of international human rights law including during belligerent occupation. Article 3 of the Universal Declaration of Human Rights states that “everyone has the right to life, liberty and the security of person.” Israeli actions of property destruction, house demolitions and land confiscation breach international human rights instruments which it has ratified such as the International Covenant on Civil and Political Rights (ICCPR), the International Covenant on Economic, Social and Cultural Rights (ICESCR) and the International Convention on the Elimination of All Forms of Racial Discrimination. Despite Israeli claims to the contrary, UN treaty monitoring bodies have repeatedly reaffirmed that Israel’s obligation under their respective conventions apply to the OPT.
For example, in 2003, the UN Human Rights Committee requested that Israel ceases forthwith the practice of property destruction and home demolition in the OPT. It also stated that such actions contravene Israel’s obligations under the ICCPR to ensure the rights of the Palestinian population not to be subjected to arbitrary interference with one's home; to freedom to choose one's residence; and to equality of all persons before the law and equal protection of the law. Furthermore the Committee endorsed the 2001 position of the UN Committee Against Torture, which stated that Israel's policy of closures and its demolitions of Palestinian homes "may, in certain instances, amount to cruel, inhuman or degrading treatment or punishment."
The demolition of houses and other property also constitutes a violation of the right to an adequate standard of living, including the right to adequate housing, under Article 11(1) of the ICESCR. The Covenant further states that "in no case may a people be deprived of its own means of subsistence," and reiterates that no state, group or person has the right "to engage in any activity or to perform any act aimed at the destruction of any of the rights or freedoms recognized herein…." Clearly, Israel’s practice of property destruction is a breach of numerous fundamental human rights provisions.
In some instances Israel has claimed that the closure of land areas to their Palestinian owners and destruction of Palestinian properties in areas adjacent to settlements conforms to the local law and planning regulations. However, at the base of these practices is a breach of international law of treaties. As noted in Article 27 of the Vienna Convention on the Law of Treaties, "a party may not invoke the provisions of its internal law as justification for its failure to perform a treaty." As such, Israeli reliance on local law does not justify its violations of its international legal obligations.