15 December 2009 By Stephen Lendman
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.
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. http://republicbroadcasting.org/Lendman
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