Jerusalemite prefers imprisonment to demolishing his own home

“Settling” constitutes a warcime according to international law and ICC statute. Even under US’ own military legislations’
Law resources below this article

 

MEMO | Nov 1, 2013

jerusalemite-prefers-imprisonmentWhen the Nazis killed the Jews during the Holocaust in World War II, they numbered each person, and when that person’s number was called he/she would enter the furnace.

Today, the Jerusalem municipality sends us numbered demolition notices that do not carry the name of the building owner, but which destroy our homes. Israel uses an anti-Semitic system to demolish our homes in Jerusalem. The Nazis numbered humans while the Israelis number our homes.” This is how Daud Abdul Razzaq Siyam, a citizen of Silwan in occupied Jerusalem, describes the demolition order he just received from the Jerusalem municipality demanding that he demolish part of the five story building where he and his family live.

The Jerusalem Municipal Court has ordered Daud to demolish two floors of his own residential building in the neighbourhood of Bir Ayyub, threatening that if he does not do so then the municipality will demolish them at a cost that he has to bear, otherwise he faces imprisonment. The municipal court has given Daud only 45 days to appeal to the central court.

Daud believes the municipality is targeting his home due to its strategic location overlooking the Al-Aqsa Mosque and the Mount of Olives, Scopus, Zion and Mukabber, as well as Abu Dis University.
However, Daud said that he will remain steadfast on his land to protect his home and family, and that he prefers prison over demolishing his own house. He also vowed that if the municipality demolishes his house then he will rebuild it yet again, and will appeal the municipality decision.

Daud explained that his family’s building consists of five floors. The first and second floors were built before 1967, while the three other floors were built in 1995. His brother Hammouda lives on the third floor with his wife and three children, the oldest of whom is 15 years old and the youngest 5. His sister Arwa occupies the fourth floor with her six children, the eldest of whom is 23 and the youngest 12. Daud, his wife and their six children, the oldest being 19 and the youngest 8, all occupy the fifth floor. The demolition order targets the third and fourth floors, while a court hearing regarding the fifth floor is due to take place in December 2013.

According to Daud, he submitted a request to Jerusalem’s mayor almost 20 years ago, back in 1995, to licence the third and fourth floors and he fulfilled all the requirements; however, the municipality ordered him to allocate a parking area and when he could not do so the municipality simply cancelled his license request.

Daud described how his legal battle to save his family’s home has been going on for many years: “since 1995 I have gone through three trials. The first in 1996 which fined me 180,000 shekels, the second in 2004 which fined me 140,000 shekels, while the third fined me 67,000 shekels, not to mention the lawyers’ fees and the court hearings. During the fourth trial I was sentenced to four months of public service.”





LAW

“States may not deport or transfer parts of their own civilian population into a territory they occupy.”

Summary

State practice establishes this rule as a norm of customary international law applicable in international armed conflicts.
International armed conflicts

The prohibition on deporting or transferring parts of a State’s own civilian population into the territory it occupies is set forth in the Fourth Geneva Convention.[1]

It is a grave breach of Additional Protocol I.[2]

Under the Statute of the International Criminal Court, “the transfer, directly or indirectly, by the Occupying Power of parts of its own civilian population into the territory it occupies” constitutes a war crime in international armed conflicts.[3]

Many military manuals prohibit the deportation or transfer by a party to the conflict of parts of its civilian population into the territory it occupies.[4]

This rule is included in the legislation of numerous States.[5]

Official statements and reported practice also support the prohibition on transferring one’s own civilian population into occupied territory.[6]

Attempts to alter the demographic composition of an occupied territory have been condemned by the UN Security Council.[7]

In 1992, it called for the cessation of attempts to change the ethnic composition of the population, anywhere in the former Yugoslavia.[8]

Similarly, the UN General Assembly and UN Commission on Human Rights have condemned settlement practices.[9]

According to the final report of the UN Special Rapporteur on the Human Rights Dimensions of Population Transfer, including the Implantation of Settlers and Settlements, “the implantation of settlers” is unlawful and engages State responsibility and the criminal responsibility of individuals.[10]

In 1981, the 24th International Conference of the Red Cross reaffirmed that “settlements in occupied territory are incompatible with article 27 and 49 of the Fourth Geneva Convention”.[11]

In the Case of the Major War Criminals in 1946, the International Military Tribunal at Nuremberg found two of the accused guilty of attempting the “Germanization” of occupied territories.[12]

References

[1] Fourth Geneva Convention, Article 49, sixth paragraph (cited in Vol. II, Ch. 38, § 334).

[2] Additional Protocol I, Article 85(4)(a) (adopted by consensus) (ibid., § 335).

[3] ICC Statute, Article 8(2)(b)(viii) (ibid., § 336).

[4] See, e.g., the military manuals of Argentina (ibid., §§ 346–347), Australia (ibid., § 348), Canada (ibid., § 349), Croatia (ibid., § 350), Hungary (ibid., § 351), Italy (ibid., § 352), Netherlands (ibid., § 353), New Zealand (ibid., § 354), Spain (ibid., § 355), Sweden (ibid., § 357), Switzerland (ibid., § 357), United Kingdom (ibid., § 358) and United States (ibid., § 359).

[5] See, e.g., the legislation of Armenia (ibid., § 361), Australia (ibid., §§ 362–363), Azerbaijan (ibid., §§ 364–365), Bangladesh (ibid., § 366), Belarus (ibid., § 367), Belgium (ibid., § 368), Bosnia and Herzegovina (ibid., § 369), Canada (ibid., §§ 371–372), Congo (ibid., § 373), Cook Islands (ibid., § 374), Croatia (ibid., § 375), Cyprus (ibid., § 376), Czech Republic (ibid., § 377), Germany (ibid., § 379), Georgia (ibid., § 380), Ireland (ibid., § 381), Mali (ibid., § 384), Republic of Moldova (ibid., § 385), Netherlands (ibid., § 386), New Zealand (ibid., §§ 387–388), Niger (ibid., § 390), Norway (ibid., § 391), Slovakia (ibid., § 392), Slovenia (ibid., § 393), Spain (ibid., § 394), Tajikistan (ibid., § 395), United Kingdom (ibid., §§ 397–398), Yugoslavia (ibid., § 399) and Zimbabwe (ibid., § 400); see also the draft legislation of Argentina (ibid., § 360), Burundi (ibid., § 370), Jordan (ibid., § 382), Lebanon (ibid., § 383) and Trinidad and Tobago (ibid., § 396).

[6] See, e.g., the statements of Kuwait (ibid., § 405) and United States (ibid., §§ 406–407) and the reported practice of Egypt (ibid., § 402) and France (ibid., § 403).

[7] See, e.g., UN Security Council, Res. 446 , 452 and 476 (ibid., § 408), Res. 465 (ibid., § 409) and Res. 677 (ibid., § 410).

[8] UN Security Council, Res. 752 (ibid., § 411).

[9] See, e.g., UN General Assembly, Res. 36/147 C, 37/88 C, 38/79 D, 39/95 D and 40/161 D (ibid., § 412) and Res. 54/78 (ibid., § 405); UN Commission on Human Rights, Res. 2001/7 (ibid., § 413).

[10] UN Sub-Commission on Human Rights, Final report of the Special Rapporteur on the Human Rights Dimensions of Population Transfer, including the Implantation of Settlers and Settlements (ibid., § 415).

[11] 24th International Conference of the Red Cross, Res. III (ibid., § 419).

[12] International Military Tribunal at Nuremberg, Case of the Major War Criminals, Judgement (ibid., § 421).


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