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Under the Guise of Security? Population Control by the Occupying Power

Human Rights Watch (HRW) released a new report, on 5 February 2012, that exposes the ways in which Israel controls immigration and nationality in the occupied Palestinian territory (OPT) through  the population registry, which it established in September 1967. The first census conducted upon its establishment resulted in the exclusion of at least 270,000 individuals. In another wave, Israel excluded a further 130,000 West Bank Palestinians who stayed abroad for long periods of time, between 1967 and 1994. In 2000, Israel effectively ‘froze’ the registry’s functions altogether and prevented the Palestinian authorities from issuing identity and travel documents or updating information for residents of the OPT. The report details Israel’s policies and practices since the beginning of its occupation of Palestinian territory with respect to the control of population and movement in and outside of the occupied territory – including removal of individuals from the population registry, denial of child registration and denial of residency in the West Bank for Palestinians from the Gaza Strip. The implementation of these policies have resulted in the depopulation of large groups of Palestinians, as stated in HRW’s press release announcing the report’s publication,

“Israel’s control over the population registry has significantly reduced the registered Palestinian population in the West Bank and Gaza, probably by hundreds of thousands of people. This reduction has occurred while Israel has simultaneously increased the number of Jewish settlers in the West Bank, in violation of international humanitarian law on transferring one’s population to occupied territory.”

In its analysis of Israel’s international law obligations, the report holds that Israel’s policies violate the rights to freedom of movement, including the right to choose one’s place of residence, and the right to family life (or family unity as stated in the report). It further states that these policies violate the rights to a nationality and the prohibition of collective punishment, due to their sweeping character and indiscriminate effects. In its final section, the report briefly discusses Israel’s authority under the law of occupation, recalling the limits placed by the international law of belligerent occupation on an Occupying Power’s ability to administer and implement changes in the daily life of the occupied territory. The law strictly prohibits an occupier from undertaking adjustments in the life of the occupied territory that would outlive the occupation. Premised on a conservational purpose, the law of belligerent occupation is there to ensure that an occupier does not transcend its administrator-type mandate and does not use the slogan of ‘the benefit of the local population’ as a pretext for a hidden agenda. Controlling the population in the occupied territory by regulating immigration and nationality, and granting or revoking citizenship and permanent residency, not only resembles the powers of sovereign governments, but most pressingly has the effect of changing the demographic composition in the territory, which is also perpetuated through the continuous expansion of Jewish settlements in the Palestinian territory.

HRW Middle East director stated, on occasion of the publication of the report, “Israel had not put forth any concrete security rationale for blanket policies.” It can be added that however serious the security rationale may be, there is no rationale that would allow Israel to legally implement blanket policies of the kind it does by controlling the registry and effectively rendering it defunct. In all cases, such measures cannot include expulsions from the occupied territory, which are absolutely prohibited. At most, it could use security measures when a real necessity for this can be shown on the basis of the specific merits of the case, particularly in order to prevent measures taken under the guise of security, which actually result in the suppression and punishment of the local population.

Apparently, the only reaction to the report from the Israeli government was that of its spokesman Mark Regev, who reportedly responded to the report by saying that Israel has granted tens of thousands of Palestinians residency status over the years, and accused HRW of anti-Israel bias. Prima facie, the government’s response, which might as well be making reference to status granted as part of political concessions or through so-called ‘connections in high places’, disregards and therefore fails to address the conclusions reached in the report.

Furthermore, Israel’s control of the population registry is also a telling example of the ways in which Israel continues to breach its own publicaly-proclaimed adherence to what is left of the PLO-Israel Interim Agreements 1995 (Oslo Accords), which are often erroneously granted a quasi-legal status, especially by the Israeli government, but also due to reliance thereon by states and non-state actors operating in the OPT. These policies breach what is arguably the underlying premise of the Agreements, being that the West Bank and Gaza Strip are an integral territorial unit, and that all necessary measures would be taken to ensure that freedom of movement and passage between them is maintained at all times to the utmost extent. More eminently, Israel’s control of the registry for residents of the Gaza Strip years after it withdrew its settlements and its ground forces from the populated areas of the Strip, is also an important factual element that substantiates the internationally-recognised legal fact (as stated by the ICRC, UN and many individual states) that the Gaza Strip remains under the ‘effective control’ of the Israeli army and is therefore ‘occupied territory’ under international law. An additional facet of the intention behind Israel’s policies becomes evident by comparing the situation of the Palestinian population with that of settlers, present in the Palestinian territory in violation of international law. Whilst Palestinians living in the West Bank whose registered address is in the Gaza Strip live under a constant threat of expulsion and prosecution, the same rules are not applied to Israeli settlers whose presence in the West Bank is supported by the Israeli authorities.

The erudite analysis conducted by Alon Margalit and Sarah Hibbin in their article, ‘Unlawful Presence of Protected Persons in Occupied Territory? An Analysis of Israel’s Permit Regime and Expulsions from the West Bank under the Law of Occupation’ (13 Yearbook of International Humanitarian Law (2010)), cited in HRW’s report, outlines the relevant legal framework concerning the limitations of the law of occupation, including: (1) the international humanitarian law prohibition on forcible transfers and deportations from occupied territory; (2) the protected persons’ inherent right to stay in the occupied territory; (3) the limits on the occupier’s legislative powers in relation to the promulgation of laws, save for those that serve its security needs or the benefit of the local population (in accordance with the occupier’s obligation under Article 43 of the 1907 Hague Regulations to ensure and maintain normal life in the occupied territory). The occupier’s powers to undertake changes are also limited by the rule that “wide-reaching reforms of governmental and administrative structures are not lawful” (Sir Michael Wood, ‘The Rights and Responsibilities of Occupying Powers’, 28 January 2010, cited in the HRW report). Due to the absence of both a credible security need for Israel’s population registry policies (namely, as discussed in their article, the requirement for a ‘determinative and binding registered address’) and in light of the adverse effect of these policies on the well-being of the Palestinian population, Margalit and Hibbin conclude that the Israeli Policy certainly appears ultra vires.

Moreover, in 2010 Israel promulgated military legislation that effectively allows for the execution of mass forcible transfers from the West Bank to the Gaza Strip by criminalising the presence of scores of Palestinians in the West Bank on the basis of their ‘registered address’, which cannot be changed due to Israel’s continued ‘freeze’ of the population registry, and putting them at risk of prosecution and forcible transfer to the Gaza Strip (see further, Al-Haq’s analysis of Military Orders 1649 and 1650 that provide a legal basis for the permit regime). Following inquiries made by local and international human rights groups about the intended practice behind the orders, the Israeli authorities responded that they do not intend to use the orders to execute mass forcible transfers from the West Bank to the Gaza Strip. Nevertheless, the mere existence of such laws could serve as a basis not only for invoking Israel’s State responsibility for grave breaches of the Geneva Conventions, inter alia, but prospectively also for substantiating certain modes of individual criminal responsibility for the war crime of forcible transfer (see for further information about ongoing forcible transfers from the two main Israeli human rights organisations working on such cases, HaMoked – Center for the Defense of the Individual, and Gisha – Legal Center for the Freedom of Movement).