The Cape Town, South Africa-based Human Sciences Research Council (HSRC) “conduct(s) large-scale, policy-relevant, social-scientific projects for public-sector users, non-governmental organisations and international development agencies,” and disseminates its findings widely.
In May 2009, it issued a damning report titled, “Occupation, Colonialism, Apartheid? A re-assessment of Israel’s practices in the occupied Palestinian territories under international law.” At the time John Dugard was the UN’s Special Human Rights Rapporteur for Occupied Palestine. At his January 2007 suggestion, the study was undertaken “to scrutinise (his) hypothesis from the perspective of international law.” It stated:
“Israel is clearly in military occupation of the OPT (Occupied Palestinian Territories). At the same time, elements of the occupation constitute forms of colonialism and of apartheid, which are contrary to international law. What are the legal consequences of a regime of prolonged occupation with features of colonialism and apartheid for the occupied people, the Occupying Power and third States?”
Given South Africa’s past, the HSRC had an “obvious interest” in pursuing these issues. After 15 months of research, its report concluded that:
“….Israel, since 1967, has been the belligerent Occupying Power in the OPT, and that its occupation of these territories has become a colonial enterprise, which implements a system of apartheid.”
Although occupation is legal after armed conflict, it’s intended only to be temporary. International law also prohibits the unilateral annexation or permanent acquisition of territory through force, and Fourth Geneva obligates signatories to protect civilians in time of war and occupation.
Its Article 3 states:
“Persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed hors de combat (out of the fight) by sickness, wounds, detention, or any other cause, shall in all circumstances be treated humanely, without any adverse distinction founded on race, colour, religion or faith, sex, birth or wealth, or any other similar criteria.”
Its Article 4 defines “protected persons” as follows:
“Persons protected by the Convention are those who, at a given moment and in any manner whatsoever, find themselves, in case of conflict or occupation, in the hands of a Party to the conflict or Occupying Power of which they are not nationals.”
Its Article 49 states:
“Individual or mass forcible transfers, as well as deportations of protected persons from occupied territory to the territory of the Occupying Power or to that of any other country, occupied or not, are prohibited, regardless of their motive.” Neither shall “The Occupying Power….deport or transfer parts of its own civilian population into the territory it occupies.”
In addition, numerous UN resolutions established “no legal validity” for occupied land acquisitions or settlement building. When violations of international law occur, no nation may recognize or support the unlawful situation or the state responsible.
In addition, colonialism and apartheid are particularly serious international law breaches because they fundamentally violate core legal order standards and values. The International Court of Justice (ICJ) affirmed self-determination as “one of the essential principles of contemporary international law,” obligating all states to respect and promote it. Colonialism is in clear violation.
The 1960 Declaration on the Granting of Independence to Colonial Countries and Peoples (the Declaration on Colonialism), condems “colonialism in all its forms and manifestations,” including settlements deemed to be illegal.
According to the 1973 International Convention for the Suppression and Punishment of the Crime of Apartheid (the Apartheid Convention), this practice is state-sanctioned discriminatory “inhuman” racism “committed for the purpose of establishing and maintaining domination by one racial group of persons over any other racial group of persons and systematically oppressing them.”
Apartheid is an international crime. The above definition builds on the 1965 International Convention on the Elimination of All Forms of Racial Discrimination (ICERD). In addition, the 1998 Rome Statute of the International Criminal Court calls apartheid a crime under the Court’s jurisdiction. Israel is flagrantly guilty but not yet held accountable.
International laws prohibiting colonialism and apartheid are “peremptory,” meaning they are “accepted and recognized by the international community of States as a whole as (standards) from which no derogation is permitted.” Every country is legally bound to respect and observe them. They’re also duty bound to:
— work cooperatively to end individual state violations;
— not extend recognition to lawless ones; nor
— provide them aid in any form.
Legal Framework in the OPT
Applicable international law recognizes:
— the Palestinians’ right to self-determination;
— the fact that Gaza, the West Bank and East Jerusalem are illegally occupied;
— that Israel has no sovereignty over these Territories, only an earlier temporary administrative right no longer applicable;
— that land seizures are illegal; so is the Separation Wall as the ICJ affirmed in 2004;
— that the 2005 Gaza “disengagement” left Israel in control; and
— that, as an Occupying Power, international law obligates Israel to “abide by the….rules of armed conflict (and relevant human rights laws) in its administration of the territories.”
For over 42 years, Israel willfully violated the law under a dual discriminatory regime. Its occupation and land seizures are illegal. Its settlers are protected under civil laws assuring them free movement and essential services. Palestinians come under military law and its courts with procedures that violate international judiciary standards. Israel’s High Court affirmed the bifurcated system that “discriminate(s) between these two groups by according (them) very different rights, protections, and life chances in the same territory.” This system violates the laws of armed conflict, and also the international legal colonialism and apartheid prohibitions.
Under the Declaration on Colonialism, this practice exists when states annex or otherwise lawlessly retain territorial control and deny indigenous peoples their right to self-determination. Israel does it six ways by:
— violating the integrity of the Occupied Territories:
— prohibiting meaningful self-government;
— integrating the area’s economy into its own;
— controlling its resources;
— denying the population economic enfranchisement, free movement, expression, its historical heritage, their right to develop and practice it, and equal justice under the law; and
— maintaining a 42-year state of war, including killings, targeted assassinations, mass arrests, incarcerations, torture and abuse, and other degrading and humiliating treatment.
Under ICERD’s Article 3, apartheid is prohibited as a particularly egregious form of discrimination, without precisely defining the practice. The Apartheid Convention and Rome Statute went further with a better one and by criminalizing certain apartheid-related acts – specifically, “inhuman (ones) committed for the purpose of establishing and maintaining domination by one racial group of persons over any other and systematically oppressing them.”
Both focus on systematic, institutionalized discrimination to achieve racial segregation and unchallenged dominance. Under the Apartheid Convention’s Article 2, HSRC determined that:
— Israeli measures deprive Palestinians of their right to “life and liberty of person;”
— they include state-sponsored violence; killings; extrajudicial assassinations; arbitrary arrests and incarcerations; torture and abuse; other cruel, inhuman or degrading treatment; kangaroo court justice in military tribunals; and administrative detentions without charge, adequate access to counsel, trial, or proper judicial review;
— state-sponsored collective punishment seriously impairing life and health, especially in Gaza under siege;
— Palestinians have no free and equal participation in their political, social, economic and cultural lives;
— they’re also denied their basic human rights and freedoms with regard to free movement; their right of return; to live anywhere in historic Palestine freely in the land of their birth; and to a nationality through self-determination;
— they’re denied economic self-determination and their right to work anywhere in historic Palestine;
— their trade unions aren’t recognized so they can’t represent Palestinians effectively;
— under military occupation, their right to education, medical care and other essential services is seriously impaired;
— censorship laws restrict free expression and opinion;
— military orders deny free assembly and public gatherings of 10 or more persons without express permission; non-violent gatherings are regularly suppressed with live ammunition, rubber-coated steel bullets, tear gas, and various other weapons;
— most Palestinian parties are considered illegal; charities, cultural organizations and other institutions and agencies connected to them are subjected to closure and attack;
— home and community intrusions, beatings, arrests, and killings occur regularly; and
— all of these practices occur in extreme form in Gaza under siege, the one difference being Jewish settlers no longer reside there, but, at any time, Israel may decide to return them and displace Palestinians by so doing.
The West Bank, in contrast, is balkanized into cantons and enclaves in which group identity determines residence and free entry. Jews have the choicest parts and keep expanding them, leaving Palestinians shrinking amounts of the rest.
HSRC’s report concluded that Israeli occupation, colonialism and apartheid are “systematic and comprehensive, as the exercise of the Palestinian population’s right to self-determination has been frustrated in all of its principal modes of expression.”
Comparing Israeli and South African Apartheid
Despite differences, Israeli and South African apartheid practices are defined by similar dominant features. Three legislative pillars underpinned South Africa’s:
— the first demarcated people into racial groups through the 1950 Population Registration Act; it institutionalized racial discrimination by affording special rights, privileges and services to whites and denied them to blacks;
— the second segregated people by geographic areas, allocated by law to different racial groups; it restricted passage from assigned areas to others to insure white supremacy; overall, it constituted “grand apartheid” by establishing “Homelands” or “Bantustans” in which “denationalized” blacks were transferred and forced to reside, while whites got special political rights denied blacks;
— the third was a matrix of draconian security laws and policies, employed to suppress opposition and reinforce racial domination “by providing for administrative detention, torture, censorship, banning, and assassination.”
In the OPT, Israel has the same three pillars:
The first legally establishes Jewish identity and affords preferential legal status and material benefits to Jews alone. Palestinians are discriminated against as inferior by religion, ethnicity, and subsequent social status.
Israel’s citizenship laws underpin the system under which Jews anywhere in the world automatically qualify for citizenship in an exclusive Jewish state. The 1950 Law of Return defines Jewishness and begins saying:
“Every Jew has the right to immigrate to this country.”
The 1952 Citizenship Law granted automatic citizenship to Jewish immigrants, while denying non-Jews similar rights. The 2003 Citizenship and Entry into Israel Law banned Palestinian family unification, giving Jews alone special rights.
The second pillar reflects Israel’s policy to expropriate choice land, segregate and dominate. It plays out through separating East Jerusalem from the rest of the West Bank, seizing increasing amounts of it for settlement development, and separating Palestinians by means of walls, barriers, checkpoints, separate roads, a discriminatory permit and ID system, and a militarized matrix of control.
In contrast, Jews have free movement and freedom. The “geographic fragmentation has the effect of crushing Palestinian socio-economic life, securing Palestinian vulnerability to Israeli economic dominance, and of enforcing a rigid segregation of Palestinian and Jewish populations,” similar to South African apartheid.
The third pillar is Israel’s “invocation of security” to justify sweeping restrictions on Palestinian free expression, opinion, assembly, association and movement and enforce them through suppression of dissent, conflict, state-sponsored violence, extrajudicial killings, arbitrary arrests and incarcerations, torture and abuse, and other kinds of cruel, inhuman and degrading treatment.
In sum, these policies are “integrated and complementary elements of an institutionalised and oppressive system of Israeli domination and oppression over Palestinians as a group; that is, a system of apartheid,” under which Israeli repression is harsh, discriminatory, and illegal under international law.
Although Israel bares primary responsibility, the international community must act cooperatively to remedy the situation as follows:
— require Israel start dismantling the structures and institutions of occupation, colonialism and apartheid;
— have it pay reparations for decades of lawlessness; and
— assure Palestinians can exercise their right of self-determination or have equal rights as citizens in one Israeli/Palestinian state.
“The realisation of self-determination and the prohibition on apartheid are peremptory norms of international law from which no derogation is permitted.” These principles obligate the entire world community to cooperate to end all breaches everywhere, including in Occupied Palestine. Failure to do so constitutes “an internationally wrongful act.” Further, any state aiding another’s lawlessness axiomatically becomes complicit in the commission of crimes, requiring other nations to hold it accountable.
International organizations like the UN bear equal responsibility. As the ICJ stated in its Separation Wall ruling, this body is obligated to resolve the Israeli-Palestinian conflict, one it helped initiate through its 1947 partition plan under UN General Assembly Resolution 181. At a time Jews comprised one-third of the population, it gave them 56% of the choicest land, the rest to Palestinians with Jerusalem designated an international city.
HSRC and John Dugard urged the ICJ to rule on this matter in accordance with the UN Charter’s Article 96 authorizing “The General Assembly or the Security Council (to) request (an ICJ) advisory opinion on any legal question.” Under Article 65 of the ICJ’s Statute, it “may give an advisory opinion on any legal question at the request of whatever body may be authorized by or in accordance with the Charter of the United Nations to make such a request.”
According to HSRC, at issue is the following:
“Do the policies and practices of Israel within the (OPT) violate the norms prohibiting apartheid and colonialism; and, if so, what are the legal consequences arising from Israel’s policies and practices, considering the rules and principles of international law, including the International Convention on the Elimination of all forms of Racial Discrimination, the International Convention on the Suppression and Punishment of the Crime of Apartheid, the Declaration on the Granting of Independence to Colonial Countries and Peoples, UN General Assembly (1960) Resolution 1514 (on granting independence to colonial countries and peoples), and other relevant Security Council and General Assembly resolutions?”
After 61 years of displacement and 42 years of occupation, these matter remain unresolved.
Stephen Lendman is a Research Associate of the Centre for Research on Globalization. He lives in Chicago and can be reached at email@example.com.
Also visit his blog site at sjlendman.blogspot.com and listen to The Lendman Hour on RepublicBroadcasting.org Monday – Friday at 10AM US Central time for cutting-edge discussions with distinguished guests on world and national issues. All programs are archived for easy listening.
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