- 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 lendmanstephen@sbcglobal.net.
-
- 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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