ISRAELI PROPOSED ROAD PLAN FOR THE WEST BANK
A Question for the International Court of Justice
Attorneys at Law
Including Report of Assessment of Damage
by AMID WAHID MASRI and TAWFIQ FARAH JABBARIN
A QUESTION FOR THE INTERNATIONAL COURT OF JUSTICE?
In pursuance of its declared policy, the military government -which is the authority in control of the occupied territories -has been following a policy of acquisition of land which has resulted according to the latest estimates in the assumption of effective control over 40% of the entire land area of the West Bank. The land thus acquired is used exclusively for the Jewish settlers in the area.
As Co lands which have .not been acquired, Israel has been pursuing a policy intended to limit The use of the land not acquired for Jewish seeders with the aim of restricting the growth of the Palestinian population in the West Bank.
International law is clear on the point that it is the duty of the occupying power to safeguard the interest of the local population. International law regards as illegal any action carried out by the occupying power which is not for the benefit of the local population or which is not absolutely essential for the protection of the security of the forces of the occupying power.
The most important recent development in the furtherance of Israel's policy of eventually annexing the occupied territory -by restricting the growth of the local population through preventing them using their agricultural land, existing installations and resources such as wells and irrigation schemes, and from expanding their towns and villages - is the Road Plan Number 50, which provides for a national road grid for the entire area of The West Bank.
This road plan was published in February 1984. The plan has already been implemented in pare and restrictions are already being imposed on the granting of building licences which contravene the plan. Permission to upgrade the Fara'a irrigation scheme, which waters over 16,000 dunums of land, by installing pipes to reduce loss of water through evaporation, is being withheld because the entire irrigation scheme will have to be destroyed when the existing road, alongside which the present canals run, is widened in accordance with the plan.
The plan has already been the subject of judicial review before the Israeli High Court of Justice which, under the present system imposed on the West Bank, is the court of last resort for appeals against the activities of the military authority. This court has held that:
However, before starting with the legal flaws in the plan under local and international law, a brief factual descriptive background will be given.
The roads that existed in the West Bank in 1967 ran from the North to the South along the center of the region with access roads running laterally away from this central backbone. Ninety-three percent of these roads were paved. In 1970 the Israeli government started creating east-west links with the Jordan Valley. The Trans-Judea and Trans-Samaria roads were built for which thousands of dunums of Palestinian land was expropriated,oft often without providing the population with the right to submit any objections to the building of these roads. The Likud government abandoned the north-south strategy and stressed integration of the West Bank road system into the Israeli system. The road plan number 50 reflects this new thinking.
The publication of the road plan in February 1984 has caused general alarm amongst the residents of the West Bank. This is due to the extensive damage which the plan will cause to agriculture and industry. It is also due to the face that the way the roads have been designed means chat Palestinian towns and villages will be greatly restricted in their development with many roads creating tight rings around their existing boundaries or cutting into the urban centers, thus preventing further expansion beyond the roads.
A thorough survey has been made of the part of road number 57 which passes from Tulkarem to Anabta and from Talluza to Ghor Al Fara'. The road surveyed constitutes 3.3% of the entire proposed roads. The damage which will be caused to buildings, agriculture, installations, irrigation schemes, etc. both in the path of the road and in the area for the setback on both sides of the road was determined with great detail. The tables appended Co this study list these damages. Reports from assessors are also appended estimating the amount of financial loss which will be caused by these two roads.
ONE: IS THE PLAN IN ACCORDANCE WITH LOCAL LAW?
In the High Court case no.393/82 where the road plan was discussed (before the plan was actually published) it was acknowledged by the military authorities that the plan was done in cooperation with Israel. The regulations published with the plan indicate that the plan is the work of the Ministry of Housing and Construction - Department of Public Works, Ministry of Defence - Department of National Security Office of Planning of General Services, and the Civilian Administration of Judea and Samaria - Department of Planning. The plan is entitled "A Regional Partial Outline Plan for Roads." It is clear chat the plan is the work of Israeli ministries and officials and that it considers the West Bank area as a part of Israel for which this road plan applies.
When notice of the publication of the plan was published in the local newspaper in the West Bank, the plan was described as the work of the Higher Town Planning Council. The notice stated chat publication is carried out in accordance with article 16 of the Jordanian Town and Village Planning Law of 1966. It; is clear that the reference to the Jordanian law is only an attempt to present the map as being formally in accordance with local law. Article 16 of the Jordanian law to which reference is made, does not deal with road plans at all but with regional plans within which roads are only one of several other matters that a regional plan must deal with.
The military authorities have in the past published the regional plan (referred to as the RJ5) in which roads were not Included* In fact Jordanian law has no provision for the creation of a single road plan for the entire area. There are laws in the Jordanian legislation which deal with roads. The road plan has not been consistent with these laws. Whereas Jordanian law allows for the construction of three kinds of roads namely main road* of 50 meters width, secondary roads of 40 meters width, and agricultural roads of 30 meters . width (Jordanian law number 29 of 1957 as amended by military order 810), the road plan creates four kinds of roads: fast roads of 120 meters width, main roads of 100 meters width, regional roads of 60 meters width and local roads of 40 meters width. Restrictions on building along each side of the road have been imposed as follows:
120 meters from each side of the road on a main road;
100 meters from each side of the road on a regional road;
The article in Jordanian law by virtue of which the road plan is presumed to be published refers (as has been mentioned above) to regional plans. The law states the various steps which the Higher Town Planning Council must fulfill before finalising a regional plan. These include thorough surveys of the topography, demography, ownership of lands, public facilities, public installations including agricultural, industrial and housing projects and many other matters of public concern for the benefit of the local population. The plan roust deal with such matters as the proposed development of towns and villages, industrial zones, public places, etc. The road plan not only does not. take these into consideration but, as the survey appended to this study shows, will destroy altogether many of these public facilities that lie in its course or alongside it. The law also imposes on the planning authority the duty within a period not later than two years from the decision to declare an area a planning zone, to place the plan at the offices of the district planning authority to enable the public to inspect it. - This has not been done.
The constitution of the Higher Town Planning Council according. to Jordanian law must include the head of the Engineering Union, the Attorney General, the head of the Housing Institute, etc. Military Order 418 has amended the Jordanian Planning Law whereby representatives of the local population and of indigenous institutions who could safeguard the public's interest have been excluded. The Council is now only composed of military officials and judging from the plans that it has already issued the interest it seeks to fulfill is chat of the Jewish settlers and Chat of Israel by creating.plans for the area which further Israel's illegal policy of de facto annexation of the occupied area to Israel. At the same time and as has been acknowledged before the court by the military authority, the plan was prepared in cooperation with Israel. The cost of the road plan will be covered, as the military authority informed the High Court, in pare from the regular taxes which are collected from the local population, and in part from Israeli sources.
The objections concerning the road plan from the point of view of international law will be discussed next.
TWO: IS THE PLAN IN ACCORDANCE WITH INTERNATIONAL LAW?
The position that the court held in case number 392/82 was that the Hague regulations are applicable to the West Bank but not the Geneva Conventions. This being so the following principles were accepted:
2. The two considerations which guide the behaviour of an occupying power are chose of the security of its forces and the interest of the local population;
3. The military authority is of a temporary nature since the military occupation is of a temporary nature;
4. The military authority is not authorized to weigh the national, economic, or social interests of its own state.
2. To ensure growth and development there is a need for basic investments which entail permanent changes which muse also continue after the end of the military occupation* This the court held is permitted if these changes are reasonably necessary to fulfill the needs of the local population;
3. These basic investments may entail planning and cooperation with partners from without the area. Such partners may be the state of the military government itself;
4. The court is willing to accept that the commanding officer acts honestly. Conclusive evidence is necessary in: order to contradict this.
5. As to the prohibition against the military commander weighing the national, economic and social interests of his own state (which the court accepted), the court qualified this by adding that he is not authorised to do so in so far as these interests have no influence on the occupying state's security Interest or on the interest of the local population. By implication therefore the court held that he can do so if the interests do have such influence. The court's factual findings were chat the plan, although prepared in cooperation with Israel, is for the benefit of the local population. On the question of the security Justification of the road plan, the court expressed its surprise (in fact as it seated, its "suspicion") chat the military government did not argue before it chat the plan is Justifiable on security grounds despite the fact that in a similar case, where the same road plan was the subject of a High Court petition before the same court, the same military government attempted to Justify the plan on the basis of its security need. The court held: "This military need was not mentioned at all. This approach is suspicious. The military government is the same, if it presents itself in front of this court in SCJ 202/81 and if it presents itself in the present case. How is it possible that what is said to one set of Judges of this court is not said to us? It is suspicious." Despite its suspicion, the court refused to let this influence its final decision.
Many legal scholars have argued for the applicability of the Fourth Geneva Convention of 1949 to the occupation by Israel of the West Bank. The official position followed by most countries of the world is that the Geneva Convention indeed applies to Israel's occupation of the West Bank. Yet still even if we were to confine our discussion to the legality of the plan in relation to the Hague Regulations we can reach the same conclusion. According to the Hague Regulations the two overriding considerations are the security of the armed forces of the occupying power and the benefit of the local population. Are these two requirements met in this case and is the plan therefore in accordance with the law?
Before discussing these two requirements it is necessary to address ourselves to the other matters which the court has stated in its decision. The court has found that provision must be made for the face that the occupation is a long term one. Even if one is to take into consideration the length of a military occupation, the two overriding considerations mentioned above must continue to be the determining yardstick by which the legality of an act is determined.
However the court has not only imposed on its own account this added consideration of the length of the occupation; it has also held chat the longevity of the occupation will necessitate long term investments. The need for this does indeed follow from the first premise. If the first premise is accepted then the second will have to be accepted also. However the court has also added that these basic investments may entail planning and cooperation with partners who may be the state of the military government itself. Such a position is open to serious challenge.
International law imposes on the occupying force the need to safeguard the interest of the local population. This may be (indeed will very likely be) contrary to the interest of the occupying state. The court's ruling chat long term investments (which must in all cases be for the interest of the local population) may be in cooperation with the state of the military government whose interests will be contradictory to chose of the occupied state, as is evident by Israel's declared policy over the West Bank, cannot be accepted. This is especially so when only the state of the military government is consulted (indeed, is the author of the entire plan as has already been mentioned) while the local population, for whose supposed interest and benefit the whole plan muse be made, is not consulted at any stage in the planning or preparation of the plan.
Another finding of the court as far as the law is concerned is subject to challenge. The court has ruled chat the prohibition against the military authority weighing the national," economic or social interest of its own scale is not absolute as mentioned above. This qualification is a serious error, since the prohibition imposed by international law is mandatory.
We return now to the consideration of the two main elements chat must be taken into account when assessing the legality of an action taken by an occupying force, namely the security of the army and the interest of the local population.
We do not propose here to discuss the security aspect because the military authorities themselves have not based their justification of the plan on the security aspects. This can only mean chat such a justification is not seriously considered by the military authorities. Otherwise, it is reasonable to assume, they would at least have argued this before the court hearing a challenge of the road plan. This they did not do.
The following is a translation into English of the Hebrew and Arabic writing that appears on the map:
ISRAEL DEFENCE ARMY
Civilian Administration - Judea and Samaria
Proposed Regional Plan for Roads No. 50
Officer in charge of the Interior-Planning Department in the District of Judea and Samaria
Prepared by Department of Public Works -Road Section
The court, has held that it is willing to accept that the commanding officer acts honestly. In other words the burden of proving that it is otherwise lies on the party claiming this. The commanding officer in this case acted through the Higher Town Planning Council. As has already been discussed the military authority has amended the local law to exclude the participation in the creation of a plan even of this magnitude of any local person, official or body whatsoever. Other matters concerning the interest of the local population which the planning authority muse, according to Jordanian law, cake into consideration in creating a regional plan were disregarded completely. Indeed no claim has been made chat any participation of or even consultation with any other local body has been sought. On the face of it therefore, the qualification and motivation of the authors of the plan are suspect. A plan presumed to be done for the benefit of the local population should at least have been presented Co the local public during the planning stage for comments, suggestions, additions or amendments. This was not done at all. The court has held, and it is indeed the law, that the actions of the military authority must be in accordance with the local law which can only be amended if such amendment is Justifiable under international law. Since the plan was done not in accordance with the Jordanian planning law as it existed on 5 June 1967 but as amended subsequently by Israel (without legal Justification), it cannot be said that the plan was carried out in accordance with the Law in force in the occupied territory.
Despite the fact that the local population neither participated nor was consulted at any stage in the preparation of the plan, is the plan as it now stands for the benefit of the local population?
In supporting their claim that the plan is for the benefit of the local population, the military authorities cited the increase in the number of cars over the past few years. There is no doubt that this is true. But it does not necessarily follow that such an increase necessitates the replacement and expansion of existing roads to the extent proposed. As has already been mentioned above, the West Bank is served by a network of roads running from south to north, 93% of which are paved. That the increase in the number of cars should necessitate a comprehensive change in the road plan from the existing north-south direction to ease-west and an increase of thousands of kilometers more of roads, cannot simply be substantiated by citing an increase in the number of cars.
But even if it were unquestionably the case that the present West Bank road system is (as the Israeli High Court has said) aging and needs modernization, why could the proposed roads not be planned to cause the least amount of damage? A thorough survey was made by certified surveyors of two kinds of proposed roads, an inter-urban road and a road passing through an agricultural area as shown in Map 2. The parts of these two roads that have been surveyed constitute only 3.3% of the entire area of the roads mentioned in the road plan (Map 1). It was found chat the damage that will be caused by the 20 kilometers of road that were surveyed amounted to damage to 1568 dunums* of land cultivated with citrus, olives, almonds, etc. as well as the destruction of 36 houses (excluding the destruction of part of the Nur Shams Refugee Camp), the destruction of the entire Fara'a irrigation schemes (note chat the regulations do not allow placing pipes below the road) which gives water to slightly over l6,0OO dunums of land, the destruction of an entire refugee camp along with the destruction on the way of many installations. All of this damage is only in the actual path. That to be caused by the setback is also as extensive. The cables appended to this list the full extent of the damage, which amounts to over tern million Jordanian dinars (approximately $27,000,000).
The survey that was carried out concerned the road passing through the town of Anabta. It shows how the proposed road will pass through the town's municipal land causing a restriction of the possibility of the town's development to the north. When it is considered that this town is surrounded from the east and west by agricultural lands on which the town depends for its livelihood and by another village in the south, the seriousness of the restriction on the town's expansion can be appreciated. The case of Anabta is not unique. The case of the village of Ibidia is more tragic. Most of the town's buildings are in the form of a ribbon along both sides of the existing road which the plan proposes will be widened. The widening of the road will cause most of the existing town to disappear if all the houses along the road are demolished. What should be noted is that in no case were any of the cities or towns through which the proposed roads will pass consulted about the path of any road.
It is clear from Map 2 Section A chat the road 57 from Tulkarem to Anabta curves at a certain point. Thereafter the road causes extensive damage in its path. From an inspection of the area it seems quite possible chat the road could have been allowed to proceed in a straight line instead of curving. It would then have been possible to avoid much of the damage that the proposed road will be causing. One wonders whether the Israeli planners who prepared the road plan were trying at all to reduce the damage that the roads they were planning would cause to The Palestinian inhabitants of the occupied territory. The evidence proves chat this was not at all the case.
*A dunum is approximately 1000 square meters
THREE: THE POSSIBILITY OF AN ADVISORY OPINION ON THE PROPOSED ROAD PLAN
The question of the lawfulness of the road plan is a question of law appropriate for consideration by the International Court of Justice.
In ruling on the legality of the road plan, the Israeli High Court gave its own interpretations of international law, as already discussed above. The world court will be asked to consider whether or not this interpretation offered by the Israeli Court is in conformity with customary international law.
In defending the road plan, Israel is putting forward factual claims that these roads are a necessary long term investment which are ultimately for the benefit of the local population. Whether or not this is so is a question of fact which would have to be considered alongside the question of law. In its Advisory Opinion on the Western Sahara the International Court of Justice emphasized chat "a mixed question of law and fact is nonetheless a legal question" for the purpose of giving an advisory opinion (1975 ICJ Report 12 at paragraph 17).
The determination of the legality of the road plan, although a significant question in its own right, will also contribute to the clarification of the more general question of what customary international law allows an occupier in a long term occupation. The judicial basis of this decision will be applicable also to other activities of Israel in the West Bank. This will assist many countries in arriving at a clearer position as regards Israeli policies in the occupied territories.
The decision to request the International Court for an advisory opinion is a political one to be taken by the General Assembly or the Security Council after a full consideration of the political advantages and disadvantages of such a course. Any resolution requesting such an opinion requires a two-thirds majority vote in the General Assembly and nine affirmative votes, including the concurring votes of the permanent members, in the Security Council.
Many resolutions have been passed by the General Assembly of the United Nations denouncing Israel's policy in the occupied territories. The debate in the U.N. has become sterile. The Road plan if implemented will cause extensive damage to the Palestinian population in the West Bank and will create substantial physical changes in the area. A U.N. resolution denouncing the legality of the plan will be of little practical; effect because it will be dismissed by Israel as the expression of a political opinion on a matter of law. If however the International Court of Justice gives its opinion on the matter this will provide a solid Judicial opinion that cannot be so easily dismissed by Israel.
The present composition of the world court is more representative of world opinion. Recent success such as in the Namibia case and the case of Nicaragua are encouraging. In the latter case, the court has made a preliminary order holding that pending the court's final decision, the United States should desist from any action endangering access to or from Nicaraguan ports and from any activity that jeopardizes the right to sovereignty and political independence of the republic of Nicaragua.
If the road plan should come before the world court, a preliminary order should be sought ordering Israel to desist from implementing the plan pending the court's final decision.
An advisory opinion from the International Court of Justice chat the new Israeli plan for West Bank roads violates international law could play an important role in resisting Israel's illegal policies towards the occupied areas.
Only the damage caused to agriculture has been assessed. The following criteria were used for assessment:
I. Criteria used to assess the value of land
III. Criteria used for assessing value of ocher agricultural installations
The proposed road will damage along its path several irrigation ponds, nurseries, etc. In arriving at an assessment of the value of nurseries, the size of the land in which the nursery is built, the type and quality of the structures used and the income generated were all taken into consideration. The price of the land over which the nursery is built was also included in the estimate. Thus one nursery in Block 8534 in the Tulkarem - Anabta section is built over 10 dunums and its structures are of metal bars. The estimated value of this nursery is 20,000 Jordanian dinars.
In arriving at an estimate of the value of irrigation ponds and water reservoirs, the size of the receptacle was taken into consideration, the amount of water it holds, the material from which it is constructed as well as the area of land it serves.
The proposed road from Talluza to Ghor Al-Fara' will destroy the Ghor Al-Fara' irrigation scheme. • This project was completed in 1956 and irrigates slightly over 16,000 dunums of land. The total annual discharge of water from the spring is around 15 million cubic meters. This figure was arrived at by measuring the water flow in 10 meters cubic meters. Plans were completed and the funds collected for installing pipes to minimize loss of water by evaporation, but the military authorities have withheld permission c.o implement this.
The destruction of the irrigation scheme will not only affect the 16,000 dunums which are irrigated by it, but will destroy the nurseries also because they depend on the low saline content of its water. Water from the artesian wells in the area is highly saline. The spring water is used by the farmers for drinking,, irrigation and for their livestock. It is not possible to estimate in monetary terms the loss of the Ghor Al-Fara' irrigation scheme.
TABLE A - Damage to be caused by the part of Road 57 shown on Map 2 Section A
passing from Anabta to Tulkarem
TABLE B - Damage to be caused by the setbacks in the part of Road 57 shown on
Map 2 Section A passing from Anabta to Tulkarem
TABLE C - Showing details of blocks of land in which is situated the damage to be
caused by proposed Road 57 from Tulkarem to Anabta as shown on Map 2
by Tawfiq Farah Jabbarin*
PART ONE: The Tulkarem - Anabta Road
Falling within the path of the proposed road are 13 one-floor houses, five two-floor houses, one stone-cutting factory and about 42 dunums of land over which the Nur Shams refugee camp is built. In the area of the setback fall 49 one-floor houses, 19 two-floor houses, one school and about 48 dunums of land on which the Nur Shams refugee camp is built.
Except for the refugee camp which is under the supervision of the United Nations Works and Relief Agency, most of the houses in the area surveyed Call within the Nablus district zoning area. The average area of each house is 150 square meters for each floor. The average cost per square meter of building is 100 Jordanian dinars.
This assessment is arrived at by taking into consideration the cost of the licence, the survey, digging the foundations, the building in stone, the installations, etc. The average price charged by engineers, contractors and various technicians in the West Bank for such works have been taken fully into consideration in arriving at my assessment.
It must be noted that no water or sewer system serves these houses. This means that each house digs its own well and cesspool. The average cost of both is estimated at 400 Jordanian dinars.
These same criteria were used in arriving at the assessment mentioned in part two of this report.
*Tawfiq Farah Jabbarin is an engineer specialized in Town Planning and Development. He has an office in Ramallah and practical experience in the cost of construction generally.
A. Assessment of the value of the buildings falling within the path of the proposed road:
The total number of cesspools and wells is 18 (13+5); their total cost is estimated at JD 7200.
The total damage amounts to JD 352,200 (195,000 + 150,000 + 7,200)
The houses in the Nur Shams Refugee Camp are all cramped with no public areas, parks or main roads. Between the houses are narrow lanes. This. being so the average built up area is 70% of the total area. The total area is 42 dunums. Taking into consideration the inferior quality of housing in the camp the estimate for each square meter is JD 45.
The built-up area in the camp is 29,400 square meters which is estimated at JD 1,323,000.
B. Assessment of the value of the buildings falling within the area of the setback:
The total damage amounts to JD 1,332,200 (735,000 + 570,000 + 27,200)
Falling within the path of the proposed road is a stone cutting factory estimated at JD 150,000.
Falling within the area of setback is a High School which is estimated at JD 100,000.
The built-up area in the camp lands falling in the area of the setback is 58,800 square meters. This is estimated at JD 2,646,000.
PART TWO: The Talluza - Fara' Road
Falling within the proposed road are 10 one-floor houses and 8 two-floor houses and one wheat mill.
In the area of the setback there are 25 one-floor houses and 6 two-floor houses and the village of Ain Shibli.
The same criteria described in Part One were used here to arrive at the estimations:
Within the path of the proposed street is situated a Wheat Mill. It is one of three such Mills in the entire West Bank. It is estimated at JD 100,000.
The total number of cesspools and wells is 18 (8+10). Their total cost is estimated at JD 7200.
The total damage amounts to JD 397,200 (150,000 + 240,000 + 7,200)
B. Assessment of value of the building falling within the area of the setback:
The total number of cesspools and wells is 31 (25 + 6). Their total cost is estimated at JD 12,400.
Within the path of the road and the area of the setback fall around 30 clay houses which are estimated at JD 12,000.
The total damage amounts to JD 579,400 (375,000 + 180,000 + 12,400 + 12,000).