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Occupation, Colonialism, Apartheid:
A Re-assessment of Israel's Practices in the Occupied Palestinian Territories under International Law
A study by the Middle East Project of the Human Sciences Research Council of South Africa
Download the Executive Summary (pdf file, 16pp, 496K)
Download the Full Study (pdf file, 302 pp, 3.2MB)
ICAHD-USA prepared and published a summary of this important legal study that helps to make it much more reader-friendly. You can read ICAHD's summary on our website and download it
This Executive Summary was provided by the South African council - the HSRC - that published the full study.
The title of the study changed with subsequent publications, but the content remained the same.
Editor:
Virginia Tilley, Coordinator, Middle East Project, and Chief Research Specialist, Democracy & Governance Programme, Human Sciences Research Council Administrative Support: Tania Fraser, HSRC
Principal Contributors:
Max du Plessis, Professor, Faculty of Law, University of KwaZulu-Natal (Durban)
Fatmeh El-Ajou, Legal Researcher/Legal Centre for Arab Minority Rights in Israel (Haifa)
Victor Kattan, Teaching Fellow, Centre for International Studies and Diplomacy, SOAS, University of London
Stephanie Koury, Research Fellow, Sir Joseph Hotung Programme on Law, Human Rights and Peace Building in the Middle East, SOAS, University of London
Godfrey Musila, South African Institute for Advanced Constitutional, Public, Human Rights and International Law (Johannesburg)
John Reynolds, Legal Researcher, Al-Haq (West Bank affiliate of the International Commission of Jurists)
Rina Rosenberg, Esq. International Advocacy Director, Adalah/Legal Centre for Arab Minority Rights in Israel (Haifa)
Iain Scobbie, Sir Joseph Hotung Research Professor in Law, Human Rights and Peace Building in the Middle East, School of Law, SOAS, University of London
Michael Sfard, Lawyer (Tel Aviv)
Virginia Tilley, Chief Research Specialist, Democracy & Governance Programme, Human Sciences Research Council (Cape Town)
Contributing Researchers:
Adalah - The Legal Center for Arab Minority Rights in Israel: Rana Asali, Legal Fellow; Katie Hesketh, Publications Researcher; Belkis Wille, Research Fellow
Al-Haq (West Bank affiliate of the International Commission of Jurists): Legal Research and Advocacy Department: Michelle Burgis; Gareth Gleed; Lisa Monaghan; Fadi Quran; Mays Warrad
Consultation:
John Dugard, Extraordinary Professor, Centre for Human Rights, University of Pretoria, former UN Special Rapporteur on the Occupied Palestinian Territories (The Hague)
Hassan Jabareen, Lawyer and General Director, Adalah - The Legal Center for Arab Minority Rights in Israel
Daphna Golan, Director, Minerva Centre for Human Rights, Faculty of Law, Hebrew University (Jerusalem)
Jody Kollapen, CEO, South African Commission on Human Rights (Pretoria)
Gilbert Marcus, Senior Counsel and Constitutional Lawyer (Johannesburg)
Pieter A. Stemmet, Advocate and Senior State Law Advisor, Department of Foreign Affairs, Government of South Africa (Pretoria)
Education Is It Apartheid?
[Web editor's note: some paragraphs in the original text have been separated into smaller sections for easier reading. The initials 'OPT' used throughout this report refer to Occupied Palestinian Territories.]
Introduction
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To explore these issues, an international team of scholars was assembled. The aim of this project was to scrutinise the situation from the nonpartisan perspective of international law, rather than engage in political discourse and rhetoric. This study is the outcome of a fifteen-month collaborative process of intensive research, consultation, writing and review. It concludes and, it is to be hoped, persuasively argues and clearly demonstrates 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.
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Belligerent occupation in itself is not an unlawful situation: it is accepted as a possible consequence of armed conflict. At the same time, under the law of armed conflict (also known as international humanitarian law), occupation is intended to be only a temporary state of affairs. International law prohibits the unilateral annexation or permanent acquisition of territory as a result of the threat or use of force: should this occur, no State may recognise or support the resulting unlawful situation.
In contrast to occupation, both colonialism and apartheid are always unlawful and indeed are considered to be particularly serious breaches of international law because they are fundamentally contrary to core values of the international legal order.
Colonialism violates the principle of self-determination, which the International Court of Justice (ICJ) has affirmed as ‘one of the essential principles of contemporary international law’. All States have a duty to respect and promote self-determination.
Apartheid is an aggravated case of racial discrimination, which is constituted according to the International Convention for the Suppression and Punishment of the Crime of Apartheid (1973, hereafter ‘Apartheid Convention’) by ‘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 practice of apartheid, moreover, is an international crime.
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The rules of international law prohibiting colonialism and apartheid are peremptory: that is, they are rules ‘accepted and recognised by the international community of States as a whole as [rules] from which no derogation is permitted’.
[Web editor's note: 'derogation' as a legal term refers to the partial abrogation of a law; to derogate from a law is to enact something which is contrary to it.]
Every State owes a legal duty to the international community as a whole not to engage in practices of colonialism or apartheid. Conversely, all States have an interest in ensuring that these rules are respected because they enshrine fundamental values of international public order. 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.
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….the prolonged length of Israel’s occupation has not altered Israel’s obligations as an Occupying Power as set forth in the Fourth Geneva Convention and the Hague Regulations.
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Findings on Colonialism
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.
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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.
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Israel’s annexation of East Jerusalem is manifestly an act based on colonial intent. It is unlawful in itself, as annexation breaches the principle underpinning the law of occupation: that occupation is only a temporary situation that does not vest sovereignty in the Occupying Power. Annexation also breaches the legal prohibition on the acquisition of territory through the threat or use of force.
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Israel’s acquisition of territory in the West Bank also starkly illustrates this intent:
the construction of Jewish-only settlements within contiguous blocs of land that Palestinians cannot enter;
a connecting road system between the settlements and the settlements and cities within the Green Line, the use of which is denied to Palestinians; and
a Wall that separates Jewish and Palestinian populations, as well as dividing Palestinian communities from each other, with passage between Palestinian areas controlled by Israel.
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.
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The physical control exercised over these areas is complemented by the administration that Israel exercises over the OPT, which prevents its protected population from freely exercising political authority over that territory. This determination is unaffected by the conclusion of the Oslo Accords and the creation of the Palestinian National Authority and Legislative Council. The devolution of power to these institutions has been only partial, and Israel retains ultimate control. By preventing the free expression of the Palestinian population’s political will, Israel has violated that population’s right to self-determination.
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Findings on Apartheid
This aspect of the study was organised according to the definition of apartheid contained in Article 2 of the Apartheid Convention, which cites six categories of ‘inhuman acts’ as comprising the ‘crime of apartheid’.
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....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.
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By examining Israel’s practices in the light of Article 2 of the Apartheid Convention, this study concludes that Israel has introduced a system of apartheid in the OPT. In regard to each ‘inhuman act’ listed in Article 2, the study has found the following:
• Article 2(a) regarding the denial of the right to life and liberty of person is satisfied by Israeli measures to repress Palestinian dissent against the occupation and its system of domination. Israel's policies and practices include murder, in the form of extrajudicial killings; torture and other cruel, inhuman or degrading treatment or punishment of detainees; a military court system that falls far short of international standards for fair trial; and arbitrary arrest and detention of Palestinians, including administrative detention imposed without charge or trial and lacking adequate judicial review.
• Article 2(b) regarding ‘the deliberate imposition on a racial group or groups of living conditions calculated to cause its or their physical destruction in whole or in part’ is not satisfied, as the Israel’s policies and practices in the OPT are not found to have the intent of causing the physical destruction of the Palestinian people. Policies of collective punishment that entail grave consequences for life and health, such as closures imposed on the Gaza Strip that limit or eliminate Palestinian access to essential health care and medicine, fuel, and adequate nutrition, and Israeli military attacks that inflict high civilian casualties, are serious violations of international humanitarian and human rights law but do not meet the threshold required by this provision regarding the OPT as a whole.
• Article 2(c) regarding measures calculated to prevent a racial group from participation in the political, social, economic and cultural life of the country and to prevent the full development of a group through the denial of basic human rights and freedoms is satisfied on several counts:
(i) 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.
(ii) 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.
(iii) Palestinians are denied their right to leave and return to their country. Palestinian refugees displaced in 1948 from the territory now inside Israel who are living in the OPT (approximately 1.8 million people including descendents) are not allowed to return to their former places of residence.
Similarly, 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 refugees displaced in 1948 to surrounding states (approximately 4.5 million) are not allowed to return to either Israel or the OPT.
Palestinian residents of the OPT must obtain Israeli permission to leave the territory.
In the Gaza Strip, especially since 2006, this permission is almost completely denied, even for educational or medical purposes. Political activists and human rights defenders are often subject to arbitrary and undefined 'travel bans', while many Palestinians who traveled and lived abroad for business or personal reasons have had their residence IDs revoked and been prohibited from returning.
(iv) 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.
(v) Palestinians are restricted in their right to work, through Israeli policies that severely curtail Palestinian agriculture and industry in the OPT, restrict exports and imports, and impose pervasive obstacles to internal movement that impair access to agricultural land and travel for employment and business.
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Palestinian unemployment in the OPT as a whole has reached almost 50 percent.
(viii) The right of Palestinians to freedom of opinion and expression is greatly restricted through censorship laws enforced by the military authorities and endorsed by the High Court of Justice. Since 2001, the Israeli Government Press Office has greatly limited Palestinian press accreditation. Journalists are regularly restricted from entering the Gaza Strip and Palestinian journalists suffer from patterns of harassment, detention, confiscation of materials, and even killing.
(ix) Palestinians’ right to freedom of peaceful assembly and association is impeded through military orders. Military legislation bans public gatherings of ten or more persons without a permit from the Israeli military commander. Non-violent demonstrations are regularly suppressed by the Israeli army with live ammunition, rubber-coated steel bullets, tear gas, improper use of projectiles such as tear gas canisters, and participants are arrested.
Most Palestinian political parties have been declared illegal and institutions associated with those parties, such as charities and cultural organisations, are regularly subjected to closure and attack.
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• Article 2(d), which relates to division of the population along racial lines, has three elements, two of which are satisfied:
(i) 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.
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(iii) 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.
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Israel’s practices in the OPT can be defined by the same three ‘pillars’ of apartheid [as South Africa’s].
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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. The product of this in the OPT is an institutionalised system that privileges Jewish settlers and discriminates against Palestinians on the basis of the inferior status afforded to non-Jews by Israel. 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. The 1950 Law of Return defines who is a Jew for purposes of the law and allows every Jew to immigrate to Israel or the OPT. The 1952 Citizenship Law then grants automatic citizenship to people who immigrate under the Law of Return, while erecting insurmountable obstacles to citizenship for Palestinian refugees.
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The second pillar is reflected in Israel’s grand policy to fragment the OPT for the purposes of segregation and domination. This policy is evidenced by:
Israel’s extensive appropriation of Palestinian land, which continues to shrink the territorial space available to Palestinians;
the hermetic closure and isolation of the Gaza Strip from the rest of the OPT;
the deliberate severing of East Jerusalem from the rest of the West Bank; and
the appropriation and construction policies serving to carve up the West Bank into an intricate and well-serviced network of connected settlements for Jewish-Israelis and an
archipelago of besieged and non-contiguous enclaves for Palestinians.
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.
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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.
These policies are State sanctioned, and often approved by the Israeli judicial system, and supported by an oppressive code of military laws and a system of improperly constituted military courts.
Additionally, this study finds that Israel's invocation of 'security' to validate sweeping restrictions on Palestinian freedom of opinion, expression, assembly, association and movement also often purports to mask a true underlying intent to suppress dissent to its system of domination, and thereby maintain control over Palestinians as a group.
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 institutionalized and oppressive system of Israeli domination and oppression over Palestinians as a group; that is, a system of apartheid.
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Israel’s status as a Jewish State’ is inscribed in its Basic Law and it has developed legal and institutional mechanisms by which the State seeks to ensure its enduring Jewish character. These laws and institutions are channelled into the OPT to convey privileges to Jewish settlers and disadvantage Palestinians on the basis of their respective group identities.
This domination is associated principally with transferring control over land in the OPT to exclusively Jewish use, thus also altering the demographic status of the territory. 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.
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The legal consequences of these findings are grave and entail obligations not merely for Israel but also for the international community as a whole.
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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.
But above all, in common with all States, whether acting singly or through the agency of intergovernmental organisations, Israel has the duty to promote the Palestinian people’s exercise of its right of self-determination in order that it might freely determine its political status freely pursue its own economic policy and social and cultural development.
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In particular, States must not recognize 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 fulfill 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.
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….all States have the duty not to recognise this situation as lawful and have the duty not to aid or assist the maintenance of this situation. Further, all States must co-operate to bring this situation to an end.
If a State fails to fulfil these duties, axiomatically it commits an internationally wrongful act. 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.
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