Saturday, May 16, 2009

Landmark study finds Israeli control in occupied territories 'a breach of the prohibition of apartheid'

The following exclusive on an international report concluding that Israel's occupation of Palestinian territories "has become a colonial enterprise which implements a system of apartheid” was sent to us by journalist Ben White. Another stinging statement from the report: "The Wall and its infrastructure of gates and permanent checkpoints suggest a policy permanently to divide the West Bank into racial cantons." (White's book 'Israeli Apartheid: A Beginner's Guide', will be published this summer. He can be contacted at

Tomorrow, an important new report, "Occupation, Colonialism, Apartheid: A re-assessment of Israel’s practices in the occupied Palestinian territories under international law", will be released at a special meeting at the School of Oriental and African Studies, University of London. I have been passed a copy of the report’s Executive Summary, and it makes for vital reading.

What follows are some of the highlights of the Executive Summary, but first a few observations. Describing Israel or Israeli policies in terms of apartheid has become more common in recent times, but has also provoked a strong backlash. It is interesting to note, therefore, that this study is a measured assessment written by legal experts on the specific ways in which Israel’s policies in the Occupied Palestinian Territories (OPT) can be considered to be ‘colonialism’ and/or ‘apartheid’, as defined by international law. It is not, quite clearly and openly, saying Israel=South Africa.

The new report was carried out by the Middle East Project of the Human Sciences Research Council of South Africa. The Middle East Project is:

an independent two year project of the HSRC to conduct analysis of Middle East politics relevant to South African foreign policy. Its funding was provided by the Department of Foreign Affairs of the Government of South Africa. The analysis in this report is entirely independent of the views or foreign policy of the Government of South Africa and does not represent an official position of the HSRC. It is intended purely as a scholarly resource for the Department of Foreign Affairs and the concerned international community.


In January 2007, while addressing the UN Human Rights Council in his capacity as UN Special Rapporteur on the human rights situation in the occupied Palestinian territories, South African law Professor John Dugard asked the following question:

Israel is clearly in military occupation of the OPT. 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?

The Human Sciences Research Council of South Africa (and specifically, their Middle East Project) “commissioned this study to test the hypothesis” put forward by Dugard. Beginning in February 2008, fifteen months of workshops, drafting, re-drafting and revision finally produced this report for publication.

Aim and focus

The aim of the project “was to scrutinise the situation from the nonpartisan perspective of international law, rather than engage in political discourse and rhetoric”. The conclusion is 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”.

The study also focuses on “the responsibility of States as a result of internationally wrongful acts”, concluding:

Faced with a violation of the prohibitions of colonialism and apartheid, all States have three duties: to cooperate to end the violation; not to recognise the illegal situation arising from it; and not to render aid or assistance to the State committing it.

On the legal framework in the OPT:

“The occupied status of the West Bank was confirmed by the ICJ in the Wall advisory opinion. Israel’s ‘disengagement’ from the Gaza Strip did not constitute the end of occupation because, despite the redeployment of its military ground forces from Gaza, it retains and exercises effective control over the territory.”

“...Israel’s administration of the OPT systematically breaches the law of armed conflict, both by disregarding the prohibition imposed on an Occupying Power not to alter the laws in force in occupied territory and by enforcing a dual and discriminatory legal regime on Jewish and Palestinian residents of the OPT. Israel grants to Jewish residents of the settlements in the OPT the protections of Israeli domestic law and subjects them to the jurisdiction of Israeli civil courts, while Palestinians living in the same territory are ruled under military law and subjected to the jurisdiction of military courts whose procedures violate international standards for the prosecution of justice. As a consequence of this bifurcated system, Jewish residents of the OPT enjoy freedom of movement, civil protections, and services denied to Palestinians. Palestinians are simultaneously denied the protections accorded to protected persons by international humanitarian law. This dual system has gained the imprimatur of Israel’s High Court and constitutes a policy by the State of Israel to sustain two parallel societies in the OPT, one Jewish and the other Palestinian, and discriminate between these two groups by according very different rights, protections, and life chances in the same territory.”

Findings on Colonialism:

“Although international law provides no single decisive definition of colonialism, the terms of the Declaration on Colonialism indicate that a situation may be classified as colonial when the acts of a State have the cumulative outcome that it annexes or otherwise unlawfully retains control over territory and thus aims permanently to deny its indigenous population the exercise of its right to self-determination. Five issues, which are unlawful in themselves, taken together make it evident that Israel’s rule in the OPT has assumed such a colonial character: namely, violations of the territorial integrity of occupied territory; depriving the population of occupied territory of the capacity for self-governance; integrating the economy of occupied territory into that of the occupant; breaching the principle of permanent sovereignty over natural resources in relation to the occupied territory; and denying the population of occupied territory the right freely to express, develop and practice its culture.”

“Israel’s annexation of East Jerusalem is manifestly an act based on colonial intent. It is unlawful in itself...”

“By thus partitioning contiguous blocs of Palestinian areas into cantons, Israel has violated the territorial integrity of the OPT in violation of the Declaration on Colonialism.”

“The economic dimension of self-determination is also expressed in the right of permanent sovereignty over natural resources, which entitles a people to dispose freely of the natural wealth and resources found within the limits of its national jurisdiction. Israel’s settlement policy and the construction of the bypass road network and the Wall have deprived the Palestinian population of the control and development of an estimated 38 percent of West Bank land. It has also implemented a water management and allocation system that favours Israel and Jewish settlers in the OPT to the detriment of the Palestinian population...Moreover, it is significant that the route of the Wall is similar to the ‘red line’ that delineates those areas of the West Bank from which Israel can withdraw without relinquishing its control over key water resources that are used to supply Israel and the settlements.”

“This study demonstrates that the implementation of a colonial policy by Israel has not been piecemeal but is 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.”

Findings on Apartheid:

“The Apartheid Convention criminalises ‘inhuman acts 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’. The Rome Statute criminalises inhumane acts committed in the context of, and to maintain, ‘an institutionalized regime of systematic oppression and domination by one racial group over any other racial group.’ Both focus on the systematic, institutionalised, and oppressive character of the discrimination involved and the purpose of domination that is entailed. This distinguishes the practice of apartheid from other forms of prohibited discrimination and from other contexts in which the listed crimes arise.”

“It must be clear, however, that practices in South Africa are not the test or benchmark for a finding of apartheid elsewhere, as the principal instrument which provides this test lies in the terms of the Apartheid Convention itself.”

“...Palestinians are subject to legal systems and courts which apply standards of evidence and procedure that are different from those applied to Jewish settlers living the OPT and that result in harsher penalties for Palestinians.”

“Restrictions on the Palestinian right to freedom of movement are endemic in the West Bank, stemming from Israel's control of the OPT's checkpoints and crossings, impediments created by the Wall and its crossing points, a matrix of separate roads, and obstructive and all encompassing permit and ID systems that apply solely to Palestinians.”

“The right of Palestinians to choose their own place of residence within their territory is severely curtailed by systematic administrative restrictions on Palestinian residency and building in East Jerusalem, by discriminatory legislation that operates to prevent Palestinian spouses from living together on the basis of which part of the OPT they originate from, and by the strictures of the permit and ID systems.”

“Palestinians are denied their right to leave and return to their country... hundreds of thousands of Palestinians displaced to surrounding states from the West Bank and Gaza Strip in 1967 have been prevented from returning to the OPT...Palestinian residents of the OPT must obtain Israeli permission to leave the territory...Political activists and human rights defenders are often subject to arbitrary and undefined 'travel bans', while many Palestinians who travelled and lived abroad for business or personal reasons have had their residence Ids revoked and been prohibited from returning.”

“Israel denies Palestinians in the OPT their right to a nationality by denying Palestinian refugees from inside the Green Line their right of return, residence, and citizenship in the State (Israel) governing the land of their birth. Israel’s policies in the OPT also effectively deny Palestinians their right to a nationality by obstructing the exercise of the Palestinian right to self determination through the formation of a Palestinian State in the West Bank
(including East Jerusalem) and Gaza Strip.”

“Israeli military actions have included extensive school closures, direct attacks on schools, severe restrictions on movement, and arrests and detention of teachers and students...A segregated school system operates in the West Bank as Palestinians are not allowed to attend government funded schools in Jewish settlements.”

“Israel has divided the West Bank into reserves or cantons in which residence and entry is determined by each individual’s group identity. Entry by one group into the zone of the other group is prohibited without a permit. The Wall and its infrastructure of gates and permanent checkpoints suggest a policy permanently to divide the West Bank into racial cantons. Israeli government ministries, the World Zionist Organisation and other Jewish-national institutions operating as authorised agencies of the State plan, fund and implement construction of the West Bank settlements and their infrastructure for exclusively Jewish use.”

“Israel has extensively appropriated Palestinian land in the OPT for exclusively Jewish use. Private Palestinian land comprises about 30 percent of the land unlawfully appropriated for Jewish settlement in the West Bank. Presently, 38 percent of the West Bank is completely closed to Palestinian use, with significant restrictions on access to much of the rest of it.”

“In sum, Israel appears clearly to be implementing and sustaining policies intended to maintain its domination over Palestinians in the OPT and to suppress opposition of any form to those policies.”

“The comparative analyses of South African apartheid there to illuminate, rather than define, the meaning of apartheid, and there are certainly differences between apartheid as it was applied in South Africa and Israel’s policies and practices in the OPT. Nonetheless, it is significant that the two systems can be defined by similar dominant features.”

“A troika of key laws underpinned the South African apartheid regime—the Population Registration Act 1950, the Group Areas Act 1950, and the Pass Laws—and established its three principal features or pillars...Israel’s practices in the OPT can be defined by the same three ‘pillars’ of apartheid.”

“The first pillar derives from Israeli laws and policies that establish Jewish identity for purposes of law and afford a preferential legal status and material benefits to Jews over non-Jews... At the root of this system are Israel’s citizenship laws, whereby group identity is the primary factor in determining questions involving the acquisition of Israeli citizenship...Israeli law conveying special standing to Jewish identity is then applied extra-territorially to extend preferential legal status and material privileges to Jewish settlers in the OPT and thus discriminate against Palestinians.

“The second pillar is reflected in Israel’s grand policy to fragment the OPT for the purposes of segregation and domination....That these measures are intended to segregate the population along racial lines in violation of Article 2(d) of the Apartheid Convention is clear from the visible web of walls, separate roads, and checkpoints, and the invisible web of permit and ID systems, that combine to ensure that Palestinians remain confined to the reserves designated for them while Israeli Jews are prohibited from entering those reserves but enjoy freedom of movement throughout the rest of the Palestinian territory.”

“...the policy of 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.”

“The third pillar upon which Israel’s system of apartheid in the OPT rests is its ‘security’ laws and policies. The extrajudicial killing, torture and cruel, inhuman or degrading treatment and arbitrary arrest and imprisonment of Palestinians, as described under the rubric of Article 2(a) of the Apartheid Convention, are all justified by Israel on the pretext of security.

“This study does not contend that Israel’s claims about security are by definition lacking in merit; however, Israel's invocation of 'security' to validate severe policies and disproportionate practices toward the Palestinians often masks the intent to suppress Palestinian opposition to a system of domination by one racial group over another. Thus, while the individual practices listed in the Apartheid Convention do not in themselves define apartheid, these practices do not occur in the OPT in a vacuum, but 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.”

“This discriminatory treatment cannot be explained or excused on grounds of citizenship, both because it goes beyond what is permitted by ICERD and because certain provisions in Israeli civil and military law provide that Jews present in the OPT who are not citizens of Israel also enjoy privileges conferred on Jewish-Israeli citizens in the OPT by virtue of being Jews. Consequently, this study finds that the State of Israel exercises control in the OPT with the purpose of maintaining a system of domination by Jews over Palestinians and that this system constitutes a breach of the prohibition of apartheid.”

Implications and Recommendations:

“The legal consequences of these findings are grave and entail obligations not merely for Israel but also for the international community as a whole.”

“Israel bears the primary responsibility for remedying the illegal situation it has created. In the first place, it has the duty to cease its unlawful activity and dismantle the structures and institutions of colonialism and apartheid that it has created. Israel is additionally required by international law to implement duties of reparation, compensation and satisfaction in order to wipe out the consequences of its unlawful acts.”

“Breaches of peremptory norms, which involve a gross or systematic failure by the responsible State to fulfil the obligations they impose, generate derivative obligations for States and intergovernmental organisations of cooperation and abstention. States, and intergovernmental organisations, must cooperate to bring to an end any and all serious breaches of peremptory norms.”

“States must not recognise as lawful situations created by serious breaches of peremptory norms nor render aid or assistance in maintaining that situation. In particular, States must not recognise Israel’s annexation of East Jerusalem or its attempt to acquire territory in the West Bank through the consolidation of settlements, nor may they bolster the latter’s economic viability. Should any State fail to fulfil its duty of abstention then it risks becoming complicit in Israel’s internationally wrongful acts, and thus independently engaging its own responsibility, with all the legal consequences of reparation that this entails...If a State aids or assists another State in maintaining that unlawful situation, knowing it to be unlawful, then it becomes complicit in its commission and itself commits an internationally wrongful act.

“States cannot evade their international obligations by hiding behind the independent personality of an international organisation of which they are members.”

“Accordingly we respectfully suggest that, in accordance with Article 96 of the Charter of the United Nations and pursuant to Article 65 of the Statute of the International Court of Justice, an advisory opinion be urgently requested on the following question:

Do the policies and practices of Israel within the Occupied Palestinian Territories 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 Resolution 1514 (1960), the Fourth Geneva Convention of 1949, and other relevant Security Council and General Assembly resolutions?