|n72. See Vienna Convention on the Law of Treaties art. 4, May 23, 1969, 1155 U.N.T.S. 331 (providing that "the Convention applies only to treaties which are concluded by States after the entry into force of the present Convention with regard to such States"). Although the ICJ has held that Articles 31 and 32 reflect customary international law, and although there is evidence to indicate that this represented the law in the mid-1950s, it has been argued that there is less evidence to suggest that this was reflective of international law in 1907 at the time of the Hague Peace Conference. However, in the Iron Rhine Arbitration, Between Belgium and the Netherlands, Permanent Court of Arbitration (May 24, 2005), available at http://www.pca-cpa.org/showpage.asp?pag_id=1155, the Arbitral Tribunal, which included three ICJ judges (Judges Higgins, Simma, and Tomka) and two Professors (Alfred H.A. Soons and Guy Schrans), held at paragraph 45 that Articles 31 and 32 of the VCLT reflect pre-existing customary international law, and thus may be (unless there are particular indications to the contrary) applied to treaties concluded before the entry into force of the Vienna Convention in 1980. They reached this conclusion by referring to the ICJ's jurisprudence in the Kasikili/Sedudu Island and Pulau Ligitan/Sipadan cases which concerned treaties concluded in the 19th century. Id.
n73. Some have argued that this refers to the status quo ante (i.e. the situation in the OPTs before its capture by Israeli forces on 4 June 1967). See, e.g., HCJ 337/71 Christian Soc'y for the Holy Places v. Minister of Def. et al., translated in 2 Isr. Y.B. Hum. Rts. 354 (1972) (Cohn, J., dissenting) (arguing that the intention of the words to restore and ensure public order and life in Article 43 is concerned with "the status quo ante ... to ensure their continued existence").
n74. Barak, supra note 55, at 361. See also Robert Kolb, Principles as Sources of International Law (With Special Reference to Good Faith), 53 Neth. Int'l L. Rev. 1, 13-25 (2006) (discussing good faith in depth).
n75. According to Edmund Schewnk, a comparison of the original French text of the Hague Regulations with the English translation of "la vie publique" has been translated into "safety." The literal translation of "la vie publique" is "public life." Edmund Schewnk, Legislative Power of the Military Occupant Under Article 43, Hague Regulations, 54 Yale L.J. 393, 393 n.1 (1945).
n76. See Commentary on the Geneva Conventions, supra note 43, at 283.
It is intended to prevent a practice adopted during the Second World War by certain Powers, which transferred portions of their own population to occupied territory for political and racial reasons or in order, as they claimed, to colonize those territories. Such transfers worsened the economic situation of the native population and endangered their separate existence as a race.
Id. (emphasis added).
n77. In his seminal study, Raja Shehadeh describes the various legal tools Israel has used to facilitate its settlement policy in the occupied territories by declaring Palestinian land to be "State land," "State property," "abandoned"; requisitioning it for "military purposes"; expropriating it for "public purposes"; and acquiring it for "Jewish purchase." Raja Shehadeh, Occupier's Law: Israel and the West Bank 15-59 (1985).
n78. Israel signed the Convention on December 8, 1949, and ratified it on July 6, 1951. Geneva Conventions of 12 August 1949, http://www.icrc.org/ihl.nsf/WebSign? ReadForm&id=375&ps=P (last visited Oct. 19, 2007).
n79. Article 43 was considered as reflecting customary international law before Israel captured the West Bank in the 1967 war. See Trial of the German major war criminals, 41 Am. J Int'l L. 248-249 (1947) ("By 1939 these rules laid down in the [Hague] Convention were recognized by all civilized nations, and were regarded as being declaratory of the laws and customs of war... ."); Cessation of vessels and tugs for navigation on the Danube case, 1 R.I.A.A. 104 (1921). In fact, almost identical words to Article 43 of the Hague Regulations had been used in previous Conventions. See Convention (II) with Respect to the Laws and Customs of War on Land and Its Annex: Regulations Concerning the Laws and Customs of War on Land art. 43, July 29, 1899; The Laws of War on Land arts. 43-44, Sept. 9, 1880; Project of an International Declaration Concerning the Laws and Customs of War arts. 2-3, Aug. 27, 1874. For a survey of this legislation, see Doris Appel Graber, The Development of the Law of Belligerent Occupation 1863-1914 (1949).
n80. Geneva Convention IV, supra note 20. With regard to the first part of Article 43, one highly-respected jurist in Israel has noted that it "must not be seen as a source of supplementary rights and authority for the Occupying Power, transcending the limits determined by the constraints of discharging its duty. See Yoram Dinstein, The Israel HCJ and the Law of Belligerent Occupation: Article 43 of the Hague Regulations, 27 Isr. Y.B. Hum. Rts. 1, 16 (1995).
n81. Geneva Convention IV, supra note 20, art. 4. Article 4 of Geneva Convention IV provides that it only applies to "protected persons" who are defined as "those who, at a given moment and in any manner whatsoever, find themselves, in case of a conflict or occupation, in the hands of a Party to the conflict or Occupying Power of which they are not nationals." This obviously cannot include nationals of the State of Israel, the occupying power.
n82. HCJ 7957/04 Mara'abe v. Prime Minister of Isr.  (Isr.), translated in 45 I.L.M. 202, P 19 (2006).
n83. See G.A. Res. ES-10/14, supra note 16 (reaffirming in the preamble "the applicability of the Fourth Geneva Convention as well as Additional Protocol 1 to the Geneva Conventions to Occupied Palestinian Territory, including East Jerusalem" (emphasis added)). On the customary status of some of AP1's provisions, see Fausto Pocar, Protocol 1 Additional to the 1949 Geneva Conventions and Customary International Law, 31 Isr. Y.B. Hum. Rts. 145 (2002).
n84. 1907 Hague Regulations, supra note 50, art. 43.
n85. There have been numerous studies on the impact of population transfers on the communities affected by the transfer. See, e.g., U.N. Comm'n on Human Rights, Sub-Comm'n on Prevention of Discrimination & Prot. of Minorities, Final Report of the Special Rapporteur on human rights and population transfer, U.N. Doc. E/CN.4/Sub.2/1997/23 (June 27, 1997). This report was preceded by a Preliminary Report UN doc. E/CN.5.Sub.2/1993/17 and Corr.1 and a Progress Report UN Doc. E/CN.4/Sub.2/1994/19 and Corr.1. For criticisms of the Draft Declaration on Population Transfer and Implantation of Settlers, see Emily Haslam, Unlawful Population Transfer and the Limits of International Criminal Law, 61 C.L.J. 66 (2002). On population transfer generally, see, for example, Eric Kolodner, Population Transfer: The Effects of Settler Infusion Policies on a Host Population's Right to Self-Determination, 27 N.Y.U. J. Int'l L. & Pol. 159 (1994). See also Christa Meindersma, Population Exchanges: International Law and State Practice-Part 1, 9 Int'l J. Refugee L. 335 (1997) (examining the human rights implications of population exchange agreements); Christa Meindersma, Legal Issues Surrounding Population Transfer in Conflict Situations, 41 Neth. Int'l L. Rev. 31 (1994) (providing an overview of existing and emerging legal standards relevant to ongoing situations of population transfer).
n86. See generally Settler Violence, B'Tselem, Israeli Information Center for Human Rights in the Occupied Territories, http://www.btselem.org/english/ Settler_Violence/ (last visited Oct. 19, 2007) (documenting settler violence against Palestinians).
n87. Ron Pundak, Director-General of Israel's Peres Peace Centre in Tel Aviv who was a key player in the 1993 Oslo negotiations, attributes its failures to the Netanyahu years of government (1996-1999), as well as to the "patronizing Israeli attitude towards the Palestinians - one of occupier to occupied - [which] continued unabated." Ron Pundak, From Oslo to Taba: What Went Wrong?, 43 Survival 31, 33 (2001).
n88. Eyal Benvenisti, The International Law of Occupation 21 (1993) (emphasis added).
n89. Israel-Palestinian Interim Agreement on the West Bank and Gaza Strip, Isr.-Palestine, Sept. 28, 1995, 36 I.L.M. 557 (1997).
n90. See Loizidou v. Turkey, Eur. Ct. H.R. App. No. 40/1993/435/514, P 56 (1996) ("Those affected by such policies or actions therefore come within the "jurisdiction' of Turkey for the purposes of Article 1 of the Convention (art. 1). Her obligation to secure to the applicant the rights and freedoms set out in the Convention therefore extends to the northern part of Cyprus."); see also Decision as to the Admissibility of Bankovic v. Belgium, Application No. 52207/99, 41 I.L.M. 517, paras. 70-71 (2002) (finding an obligation to secure an area outside its national territory under its effective control). Turkey has occupied northern Cyprus since July 20, 1974.
n91. See HCJ 7957/04 Mara'abe v. Prime Minister of Isr.  (Isr.), translated in 45 I.L.M. 202, P 27 (2006) (stating that the HCJ "shall assume - without deciding the matter - that the international conventions on human rights apply in the area").
n92. See ICJ Wall Advisory Opinion, supra note 2, at 1040, paras. 111, 113 (discussing the applicability of human rights law to the OPTs). Israel ratified the Covenants on Human Rights on January 3, 1992.
n93. See ECOSOC, Sub-Comm. on the Promotion & Prot. of Human Rights, Comm'n on Human Rights, Working Paper on the Relationship Between Human Rights Law and International Humanitarian Law, para. 76, U.N. Doc. E/CN.4/Sub.2/2005/14 (Jun. 21, 2005) (prepared by Francoise Hampson & Ibrahim Salama) (noting that the case law strongly suggests that human rights bodies should interpret the norms of human rights law in light of international humanitarian law). See also id. paras. 57, 69, where the authors conclude that lex specialis was not being used by the ICJ in its Wall Advisory Opinion to displace human rights law and that whether IHL/human rights law is applicable is not a question of "either ... or." They conclude that the case law of the European Court of Human Rights and Inter-American Commission and Court of Human Rights strongly suggests that in situations of conflict, human rights bodies should interpret the norms of human rights law in light of the law of armed conflict and IHL, as the lex specialis.
n94. International Covenant on Civil and Political Rights, Dec. 19, 1966, 999 U.N.T.S. 171.
n95. Legality of the Threat of Use of Nuclear Weapons, Advisory Opinion, 1996 I.C.J. 226, PP 25, 35 (July 8).
n97. Id. (emphasis added).
n98. ICJ Wall Advisory Opinion, supra note 2, at 1038-39, para. 106.
n99. Armed Activities on the Territory of the Congo (Congo v. Uganda), 2005 I.C.J. 215 (Dec. 19).
n100. In other words, human rights law remains applicable in situations of armed conflict, except when it is in direct conflict with the law of armed conflict. See generally Charles Garraway, Chatham House, The "War on Terror": Do the Rules Need Changing? (2006), available at http://www.chathamhouse.org.uk/publications/papers/ download/-/id/384/file/4019_bpwaronterror.pdf (last visited Sept. 8, 2006) (analyzing the relationship between human rights law in the "War on Terror").
n101. See, e.g., Int'l Law Comm'n, Fragmentation of International Law: Difficulties Arising from the Diversification and Expansion of International Law, U.N. Doc. A/CN.4/L.682 (Apr. 13, 2006) (finalized by Martti Koskenniemi) (discussing lex specialis generally).
n102. See Henckaerts, supra note 67 (clarifying and elucidating this reflection of customary international law in this recent ICRC study).
n103. Various financial incentives are used to encourage people to move into settlements. See generally B'Tselem, Land Grab: Israel's Settlement Policy in the West Bank (2002), http://www.btselem.org/Download/200205_Land_Grab _Eng.pdf [hereinafter Land Grab] (discussing a number of methods the Israeli government used). Although during Israel's Gaza disengagement plan in September 2005, 8500 Israeli settlers were forced to evacuate Gaza, 14,000 Israeli settlers moved into settlements in the West Bank. Chris McGreal, Israel Redraws the Roadmap, Building Quietly and Quickly, Guardian (London), Oct. 18, 2005, at 17.
n104. See HCJ 1661/05 Regional Council of Gaza Beach v. Knesset (not translated); see also Chatham House, Disengagement From Gaza - Legal Issues, available at http://www.chathamhouse.org.uk/publications/papers/download/-/id/286/ file/3922_ilp200605.pdf (last visited Oct. 19, 2007) (providing a summary of highlights from the case in English). In this case, Israel's High Court of Justice rejected the claims advanced by the Gaza settlers that their human rights would be breached if they were forced to relocate from the Gaza Strip. Paradoxically, many of these settlers moved to the West Bank, as noted in McGreal, supra note 103, at 17.
n105. International Covenant on Civil and Political Rights, supra note 94, at 176 (emphasis added).
n106. See Efrat Ungar v. Palestine Liberation Org., 402 F.3d 274, 292 (1st Cir. 2005) ("We recognize that the status of the Palestinian territories is in many ways sui generis. Here, however, the defendants have not carried their burden of showing that Palestine satisfied the requirements for statehood under the applicable principles of international law at any point in time."). For articles on the question of Palestinian statehood, see Francis A. Boyle, The Creation of the State of Palestine, 1 Eur. J. Int'l L. 301 (1990); James Crawford, The Creation of the State of Palestine: Too Much Too Soon?, 1 Eur. J. Int'l L. 307 (1990); and Jean Salmon, Declaration of the State of Palestine, 5 Palestine Y.B. Int'l L. 48 (1989), translated in 33 Annuaire Francais de Droit Int'l 37-62 (1988).
n107. Land Grab, supra note 103, at 7.
n109. Nor may Israel benefit from its own wrongdoing. This derives from the principle of ex injuria non jus oritur. As Judge Elaraby noted in his separate opinion in Wall: "The general principle that an illegal act cannot produce legal rights - ex injuria jus non oritur - is well recognized in international law." ICJ Wall Advisory Opinion, supra note 2, at 1087, para. 3.1 (declaration of Judge Elaraby). See generally R.Y. Jennings, Nullity and Effectiveness in International Law, in Cambridge Essays in International Law: Essays in Honour of Lord McNair 64, 72-74 (1965) (discussing the principle of ex injuria non oritur jus).
n110. HCJ 7957/04 Mara'abe v. Prime Minister of Isr.  (Isr.), translated in 45 I.L.M. 202, P 14 (2006).
n111. Geneva Convention IV, supra note 20, art. 47 (emphasis added).
n112. Commentary on the Geneva Conventions, supra note 43, at 274.
n113. Israel-Palestinian Interim Agreement, supra note 89.
n114. See generally Sasson Report, supra note 45 (discussing the settlements and Israeli municipal law).
n115. This was indeed argued by counsel for Jordan and it seems to have been accepted by the ICJ. See Request for Wall Advisory Opinion, supra note 15, para. 9 (pleading by Sir Arthur Watts, Senior Legal Advisor to Jordan).
n116. International Covenant on Economic, Social and Cultural Rights art. 1, Dec. 16, 1966, 993 U.N.T.S. 3.
n117. See infra Part IV (addressing in detail what underlies the Palestinian right of self-determination).
n118. Customary law as opposed to treaty law is binding upon domestic courts in Israel. See Lapidoth, supra note 65, at 452 (noting that "as in most states, in Israel, too, international custom is automatically part of municipal law, with no need for an act of transformation" from the legislature to make the law binding on the courts).
n119. For example, one major issue is the utilization of natural resources in the West Bank by the settlers and private Israeli companies. See, e.g., G.A. Res. 3171 (XXVIII), U.N. GAOR, 28th Sess., Supp. No. 30, U.N. Doc. A/9400 (Dec. 17, 1973); G.A. Res. 1803 (XVII), P 5, U.N. GAOR, 17th Sess., Supp. No. 17, U.N. Doc. A/5217 (Dec. 14, 1962) (General Assembly resolutions on Permanent Sovereignty over Natural Resources). In the context of natural resources in Palestine and the Golan Heights, see G.A. Res. 57/269, U.N. Doc. A/RES/57/269 (Mar. 5, 2003). See also Nico Schrijver, Sovereignty over Natural Resources: Balancing Rights and Duties 152-56 (1997) (discussing permanent sovereignty over the OPTs).
n120. See HCJ 7957/04 Mara'abe v. Prime Minister of Isr.  (Isr.), translated in 45 I.L.M. 202, P 14 (2006) (arguing that the areas have not been "annexed" and thus are not governed by Israeli law, but instead by public international law regarding belligerent occupation).
n121. Id. P 15.
n122. Id. P 98.
n123. See Yuval Yoaz, State Prosecution Concedes Political Aim for Jerusalem Fence, Ha'aretz (Jerusalem), June 21, 2005, available at http://www.christusrex.org/ www1/news/haaretz-6-21-05a.html (concerning construction of a separation fence in northern Jerusalem).
n124. Basic Law: Jerusalem, Capital of Israel, 5740-1980, 34 LSI 209 (1979-1980) (Isr.). See S.C. Res. 478, P 5(b), U.N. Doc. S/RES/478 (Aug. 20, 1980) (calling on "those States that had established diplomatic missions in Jerusalem to withdraw" them); see also S.C Res. 476, U.N. Doc. S/RES/476 (June 30, 1980) (holding an emergency session to discuss the legal consequences of building the wall). At present, Jerusalem is not recognized as Israel's capital by any country in the world. See Israel Science and Technology, Embassies and Consulates in Israel, http://www.science.co.il/ Embassies.asp (last visited Oct. 19, 2007) (showing all foreign embassies in Israel are located in Tel Aviv, not Jerusalem). Costa Rica and El Salvador, the only countries to have had embassies in Jerusalem, moved them to Tel Aviv in August 2006. See Gil Hoffman, Costa Rica to Relocate Embassy to TA, Jerusalem Post, Aug. 17, 2006, available at http://www.jpost.com/servlet/Satellite?pagename=JPost%2FJPArtic le%2F ShowFull&cid=1154525889070; El Salvador To Move Embassy From Jerusalem, Ynetnews.com, Aug. 25, 2006, http://www.ynetnews.com/articles/0,7340,L-3295745,00.html.
n125. See S.C. Res. 298, U.N. Doc. S/RES/298 (Sept. 25, 1971); S.C. Res. 271, U.N. Doc. S/RES/271 (Sept. 15, 1969); S.C. Res. 267, U.N. Doc. S/RES/267 (July 3, 1969); S.C. Res. 252, U.N. Doc. S/RES/252 (May 21, 1968); G.A. Res. 2254 (ES-V), U.N. GAOR, 5th Emer. Spec. Sess., Supp. No. 1, U.N. Doc. A/6798 (July 14, 1967); G.A. Res. 2253 (ES-V), U.N. GAOR, 5th Emer. Spec. Sess., Supp. No. 1, U.N. Doc. A/6798 (July 4, 1967).
n126. See Muhammad Abdullah Iwad & Zeev Shimshon Maches v. Military Court, Hebron District, supra note 49; Golan Heights Law, 5742-1981, 36 LSI 7 (1981) (Isr.); Jurisdiction and Administration Order (No.1), 5727-1967 (1967) (Isr.). The HCJ has stated that from the date of the 1967 Order, "united Jerusalem became an inseparable part of Israel." HCJ 171/68 Hanzalis v. Greek Orthodox Patriarchal Church  (Isr.), translated in 48 Int'l L. Rep. 93 (1970).
n127. For an article examining the various measures Israel has used to expand its control over East Jerusalem by expropriating Palestinian land, constructing Jewish settlements, zoning Palestinian lands as "green areas," developing town planning schemes, demolishing Palestinian homes, and revoking Palestinian residency permits, see Ardi Imseis, Facts on the Ground: An Examination of Israeli Municipal Policy in East Jerusalem, 15 Am. U. Int'l L. Rev. 1039 (2000).
n128. ICJ Wall Advisory Opinion, supra note 2, at 1042, para. 121.
n129. Id. (emphasis added).
n130. See, e.g., ECOSOC, Comm'n on Human Rights, Report of the Special Rapporteur of the Commission on Human Rights, John Dugard, on the Situation of Human Rights in the Palestinian Territories Occupied by Israel Since 1967, P 14, U.N. Doc. E/CN.4/2004/6 (Sept. 8, 2003). In April 2006, the Human Rights Commission was replaced by a new Human Rights Council. See G.A. Res. 60/251, U.N. A/RES/60/251 (Apr. 3, 2006) (establishing the new Human Rights Council to be based in Geneva).
n131. Israel Has De Facto Annexed the Jordan Valley, B'Tselem, Feb. 13, 2006, available at http://www.btselem.org/English/Settlements/20060213_Anne xation_of_ the_Jordan_Valley.asp. According to a report, Ehud Olmert, Israel's acting Prime Minister, said that Israel intends to keep control of the Valley, even after it pulls out of other parts of the West Bank and draws new borders - as a defensive move. Chris McGreal, Israel Excludes Palestinians from Fertile Valley, Guardian (London), Feb. 14, 2006, at 22 ("It is impossible to abandon control of the eastern border of Israel." (quoting Olmert)).
n132. McGreal, supra note 131, at 22.
n133. For a recent and in-depth study of the effect of the Wall in combination with Israel's prolonged 40-year occupation, see Amnesty Int'l, Enduring Occupation: Palestinians Under Siege in the West Bank, (2007), available at http://www.amnesty.org/resources/pdf/Israelreport.pdf.
n134. Marius Schattner, Fixing borders is Israel's top priority: Olmert, Lebanonwire, Feb. 13, 2006.
n136. Yuval Yoaz, Justice Minister: West Bank Fence Is Israel's Future Border, Ha'aretz (Jerusalem), Dec. 1, 2005.
n137. ICJ Wall Advisory Opinion, supra note 2, at 1031, para. 78.
n138. See B'Tselem, Information Sheet, Forbidden Roads: The Discriminatory West Bank Road Regime (2004), available at http://www.btselem. org/Download/200408_Forbidden_Roads_Eng.pd f (analyzing the forbidden roads regime from an international law perspective). See also Samira Shah, On the Road to Apartheid: The Bypass Road Network in the West Bank, 29 Colum. Hum. Rts. L. Rev 221 (1997-8).
n139. According to the Report of the Special Rapporteur of the Commission on Human Rights, supra note 130, P 15, the right of self-determination is closely linked to the notion of territorial sovereignty. A people can only exercise the right of self-determination within a territory. Id. The amputation of Palestinian territory by the Wall seriously interferes with the right of self-determination of the Palestinian people as it substantially reduces the size of the self-determination unit (already small) within which that right is to be exercised." Id. See also Written Statement Submitted by Palestine, paras. 548-549, Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory (Req. for Advisory Op.) available at http://www.icj-cij.org/docket/files/131/1555.pdf (last visited Oct. 19, 2007) (naming several ways in which the Palestinians claimed the wall interfered with the people's self-determination).
n140. HCJ 7957/04 Mara'abe v. Prime Minister of Isr.  (Isr.), translated in 45 I.L.M. 202, PP 48-49 (2006); HCJ 2056/04 Beit Sourik Village Council v. Israel  (Isr.), translated in 43 I.L.M. 1099 (2004).
n141. ICJ Wall Advisory Opinion, supra note 2, at 1034-53, paras. 88, 115, 118, 122, 155, 159. Judge Higgins also chastised the court for implicitly adopting a "post-colonial view of self-determination" without any particular legal analysis. Whilst she "approves of the principle invoked," she is "puzzled as to its application in the present case." Id. at 1062-63, paras. 29-30 (separate opinion of Judge Higgins). So is the author of this Article. For further criticism, see id. at 1071-72, paras. 31-33 (separate opinion of Judge Kooijmans).
n142. Id. at 1067, para. 7 (separate opinion of Judge Kooijmans). For example, in paragraph 71, the ICJ recalls that the Arab population of Palestine and the Arab States rejected the partition plan, contending that it was unbalanced, and that on May 14, 1948, Israel declared its independence whereupon armed conflict broke out between Israel and a number of Arab States. However, the court does not point out that armed conflict broke out between the Zionists and the Palestine Arabs immediately after the adoption of the partition plan on November 29, 1947, whereupon the Zionists conquered territory in excess of the limits established in the partition resolution before it declared its independence at midnight on May 15, 1948. Nor does the court refer to the mass exodus of the Palestinian population between November 1947 and May 1948 (when some of the biggest expulsions took place), or to the fact that British troops remained in effective control of Palestine until June 29, 1948, when they completed their evacuation. See Progress Report of the United Nations Mediator on Palestine, submitted to the Secretary-General for Transmission to the Members of the United Nations, U.N. Doc. A/648 (Sept. 16, 1948) (prepared by Count Folke Bernadotte) (discussing the mass Palestinian exodus of over 300,000 Arabs and the termination of the Mandate of partition on May 15, 1948). For historical analysis, see Benny Morris, Revisiting the Palestinian Exodus of 1948, in The War for Palestine: Rewriting the History of 1948, at 37-59 (Eugene L. Rogan & Avi Shlaim eds., 2002).