An Examination of the Authority of the Military Commander to Requisition Privately Owned Land for the Construction of the Separation Barrier

Abstract

This paper examines the authority of the Military Commander to requisition privately owned land for the construction of the Separation Barrier within the West Bank, which is held through a regime of belligerent occupation. The examination focuses on Article 52 of the Hague Regulations, which deals with the issue of requisitions in kind. Moreover, the relationship between Articles 23(g) and 52 of the Hague Regulations is discussed, in light of the ICJ's decision whereas Article 23(g) is irrelevant after the close of active hostilities. This paper argues that while Article 52 grants the Military Commander the authority for such requisitions, Israel must demonstrate in each specific case that there a specific duty of the army of occupation which gives rise to a specific need of the army of occupation, in accordance with Article 52. The relevant decisions of the International Court of Justice and the Israeli High Court of Justice (HCJ) are examined, especially the High Court of Justice's Beit Sourik judgments and the International Court of Justice's Legal Consequences case.