"Loyalty to petrified opinion never broke a chain or freed a human soul." - Mark Twain

UN Report: Israeli Practices Regarding the Palestinian People and the Question of Apartheid

[As visitors to this site will quickly see, I stopped using it as a way to share my work back in 2016. I'm developing another website on the question of apartheid in Israel/Palestine, which will be designed for researchers. I post the Executive Summary here for those of you in a hurry who just want a quick overview, but I encourage you to read the full report in one of the many places it's posted on line: for example, here.]

Executive Summary

This report concludes that Israel has established an apartheid regime that dominates the Palestinian people as a whole. Given the seriousness of this allegation, the report concludes that available evidence establishes beyond a reasonable doubt that Israel is guilty of policies and practices that constitute the international crime of apartheid as legally defined.
Appreciating the question’s sensitivity to public opinion, this study rests its analysis on the same body of international human rights law and principles that reject anti-Semitism and other racially discriminatory ideologies: those prohibiting all forms of racial discrimination, such as the United Nations Charter (1945), the Universal Declaration of Human Rights (1948), and the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD, 1965). The report relies for its definition of apartheid primarily on article II of the International Convention on the Suppression and Punishment of the Crime of Apartheid (1973):
The term "the crime of apartheid", which shall include similar policies and practices of racial segregation and discrimination as practiced in southern Africa, shall apply to… 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.
Although the term apartheid was originally associated with the specific instance and experience of South Africa, it now represents a species of crime against humanity under both customary international law and the Rome Statute, which defines apartheid as:
‘The crime of apartheid’ means inhumane acts … committed in the context of an institutionalized regime of systematic oppression and domination by one racial group over any other racial group or groups and committed with the intention of maintaining that regime;
Against this background, this study reflects the expert consensus that the prohibition of apartheid is universally applicable. It was not rendered moot by the collapse of apartheid in South Africa, and South West Africa (now Namibia).
Non-legal references to apartheid, while useful in some settings, should not be confused with the usage employed in this study. Such popular usages of apartheid as a term of general opprobrium include: treating apartheid as discrete acts and practices: (e.g., as in “apartheid wall”); understanding apartheid as being generated by anonymous structural conditions, such as capitalism (e.g., “economic apartheid”); and taking apartheid to represent the set of private social behaviour imposed on racial groups (social racism). Instead, this study anchors its definition in international law in order to provide a finding relevant to international responsibility as specified in international instruments.
The choice of evidence here is guided by the Apartheid Convention in its provision that the crime of apartheid consists of discrete inhuman acts but that such acts acquire the status of crimes against humanity only if they intentionally serve the core purpose of racial domination. The Rome Statute specifies in its definition the presence of an “institutionalized regime” serving the “intention” of racial domination. “Purpose” and “intention” resting at the core of both definitions, this study examined factors ostensibly separate from the Palestinian dimension — especially, the doctrine of Jewish statehood as expressed in law and the design of Israeli State institutions — to establish whether the presence of such a core purpose is unambiguously present.
That Israel’s regime is designed for this core purpose was found to be evident in the body of laws, only some of which are discussed in this study for reasons of scope, through which the State of Israel administers lands under its control to serve the purpose of dominating non-Jews. One prominent example is land policy. Israel’s Basic Law mandates that lands held by either the State of Israel or Israel’s Development Authority or the Jewish National Fund shall not be transferred in any manner, placing its management permanently under the authority of these institutions. The State Property Law of 1951 further provides for the reversion of property (including land) to the State in any area “in which the law of the State of Israel applies.” The Israel Lands Authority (ILA) manages state land, which accounts for 93 per cent of the land within the internationally recognized borders of Israel and is by law closed to use, development, and ownership by non-Jews. These laws are embraced within Israeli Basic Law regarding “public purpose”. While these laws might be changed through Knesset vote, Israeli Basic Law: Knesset disallows any political party from challenging this purpose. Effectively, Israeli law renders opposition to racial domination more than difficult, it is illegal.
Demographic engineering is another area of policy serving the purpose of maintaining Israel as a Jewish state. Most well-known is Israeli law that confers the right of Jews worldwide to enter Israel and obtain Israeli citizenship regardless of their countries of origin and whether or not they can show links to Israel or Palestine, while withholding the any comparable right from Palestinians, including from those with documented ancestral homes in the country. The 1952 Status Law establishes the World Zionist Organization and Jewish Agency as authorized agencies of the State of Israel, with authority to facilitate Jewish immigration and preferentially serve the interests of Jewish citizens in matters ranging from land use to public development planning and other uses deemed vital to Jewish statehood. Some laws involving demographic engineering are expressed in coded language, such as laws that allow Jewish councils to reject applications for residence from Palestinian citizens. Israeli law normally allows spouses of Israeli citizens to relocate to Israel but uniquely prohibits this option to Palestinians in the occupied territories. On a far larger scale, Israeli policy is to reject the return of any portion of Palestinian refugees and exiles (totalling some six million people) to territory under Israel’s control.
Two additional attributes of a systematic regime of racial domination must be present to qualify the regime as an instance of apartheid. The first of these involves the identification of the oppressed persons as belonging to a specific ‘racial group.’ This report accepts the ICERD definition of “racial discrimination” as “any distinction, exclusion, restriction or preference based on race, colour, descent, or national or ethnic origin which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of human rights and fundamental freedoms in the political, economic, social, cultural or any other field of public life”. On this basis, the study argues that in the geopolitical context of Palestine both Jews and Palestinians can be considered “racial groups” as defined by ICERD because the Apartheid Convention expressly cites ICERD on this matter in its preambular paragraphs.
The second attribute is the boundary and character of the group or groups involves. The status of the Palestinians as a people entitled to exercise the right of self-determination has been legally settled, most authoritatively by the International Court of Justice in its 2004 advisory opinion on Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory. On this basis, the report examines the treatment by Israel of the Palestinian people as a whole, considering the distinct circumstances of geographic and juridical fragmentation of the Palestinian people as a condition imposed by Israel. (Annex II addresses the issue of a proper identification of the “country” responsible for the denial of Palestinian rights under international law.)
This study finds that this strategic fragmentation of the Palestinian people comprises the principal method through which Israel imposes an apartheid regime. The report first examines how the history of warfare and political struggle, partition, de jure and de facto annexation and prolonged occupation in Palestine has generated a political geography in which the Palestinian people has been fragmented into different geographic regions administered through distinct laws. This fragmentation operates to stabilize Israel’s regime of racial domination over the Palestinians and to weaken the will and capacity of the Palestinian people to mount a unified and effective resistance. Different methods are deployed depending on where Palestinians live. This fragmentation is the core means by which Israel both enforces apartheid and impedes international recognition of how the system works as a complementary whole to comprise an apartheid regime.
Since 1967, Palestinians as a people have lived in what the report refers to as four ‘domains’, in which the fragments of the Palestinian population are ostensibly treated differently but share the commonality of racial oppression under Israel’s apartheid regime. These four domains are:
1)      civil law, with special restrictions, governing Palestinians who live in Israel as Israeli citizens;
2)      permanent residency law governing Palestinians living in the city of Jerusalem;
3)      military law governing Palestinians, including those in refugee camps, living since 1967 under conditions of belligerent occupation in the West Bank and Gaza Strip; and
4)      Policy to preclude the return of Palestinians living outside territory under Israel’s control, mostly in the frontline states neighboring Israel, including Jordan, Lebanon, and Syria, as well as countries in West Asia and throughout the world.

Domain 1 embraces about 1.7 million Palestinians who are citizens of Israel. For the first twenty years of Israel’s existence, they were held under martial law and they are still subjected to comprehensive domination and oppression on the basis of not being Jewish. Empirically, that policy of domination can be seen in the inferior services, restrictive zoning laws and reduced budget accorded to Palestinian communities; in formal and informal restrictions on jobs and professional opportunities; and in the segregated landscape whereby Jewish and Palestinian citizens overwhelmingly live in their own cities and towns. Palestinian parties can campaign for minor reforms and better budgets, but are legally prohibited by Basic Law as enacted by the Knesset from challenging laws maintaining the racial regime itself. This policy is implemented partly by differentiating between “citizenship” (Heb: ezrahut) and “nationality” (Heb: le’um): in Israel, citizenship rights and national rights are differentiated on the basis of discriminatory criteria/ Every Israeli citizen enjoys the former, but only Jews enjoy the latter, and no other nationality is recognized in Israel. Hence “national” rights in Israeli law signify Jewish-national rights. This domain has operated to situate the struggles of Palestinian citizens for equality toward civil reforms under Israeli law, tending to fragment their issues from those of Palestinian elsewhere whose struggles have been carried on under the auspices of the Palestine Liberation Organization.
Domain 2 embraces the approximately 300,000 Palestinians who live in East Jerusalem. This population experiences discrimination in education, health care, employment, residency and building rights, and suffers from expulsions and home demolitions that serve Israel’s policy of “demographic balance” that operates in favour of Jewish residents. Domain 2 positions East Jerusalem Palestinians in a separate category designed to prevent their being added to Palestinians’ demographic, political and especially electoral weight inside Israel. As permanent residents, they have no standing in Israeli law to challenge the laws of the State, whereas openly identifying with Palestinians in the occupied Palestinian territory politically carries the risk of expulsion to the West Bank and an accompanying loss of the right even to visit Jerusalem. Thus, the urban epicentre of Palestinian nationalism and political life is caught inside a special domain that severely impairs Palestinian capabilities to oppose the apartheid regime by recourse to lawful means.
Domain 3 is the system of military law imposed on approximately 6.6 million Palestinians who live in the occupied Palestinian territory (OPT): that is, 4.7 million in the West Bank and 1.9 million in the Gaza Strip. Domain 3 is administered in a manner that fully embodies apartheid as defined in the Apartheid Convention: except for the provision on genocide, every illustrative “inhuman act” listed in the Apartheid Convention is routinely and systematically practiced by Israel in the West Bank. Taken broadly, Israel administers Palestinian civilians through reliance on military law while the approximately 350,000 Jewish settlers are governed by Israeli civil law. The racial character of this situation is further confirmed by the fact that all West Bank Jewish settlers enjoy the protections of Israeli civil law on the basis of being Jewish, whether they are Israeli citizens or not. This dual legal system, problematic in itself, is indicative of an apartheid regime when coupled with the racially discriminatory management of land and development administered by the Jewish-national institutions as discussed earlier, who are charged to administer ‘state land’ for Jewish benefit. To support its overall findings regarding Domain 3, this report appends in Annex I the policies and practices of Israel that cumulatively constitute violations of Article II of the Apartheid Convention in the OPT.
Domain 4 is the condition of forced exile imposed on the millions of Palestinian refugees and other Palestinian who live mostly in neighbouring countries and are not allowed to return to their homes in Israel and the OPT, usually on political or security grounds,. Israel defends its rejection of the Palestinians’ return in frankly racist language: Palestinians are alleged to constitute a ‘demographic threat’ whose return would alter Israel’s demographic character to the point of eliminating Israel as a Jewish state. Domain 4 plays an essential role in Israel’s apartheid regime by ensuring that the Palestinian population in Palestine, as delimited by its borders during the British mandate, does not gain the size that would threaten Israel’s military control of the OPT and/or provide the demographic leverage for Palestinian citizens of Israel to demand (and obtain) full democratic rights, thereby eliminating the Jewish character of the State of Israel. Although Domain 4 is confined to policies denying Palestinians their internationally grounded rights of repatriation, it is treated here as integral to the whole system to oppress and dominate the Palestinian people as a whole through its crucial function in sustaining the racial demography essential to preserving Israel’s apartheid regime.
This study finds that, taken together, the four domains constitute one comprehensive regime developed for the purpose of ensuring enduring domination over non-Jews in all land under Israel’s exclusive governance in whatever category. To some degree, the differences of treatment accorded Palestinians have been provisionally treated as valid by the UN, but without assessment from the perspective of the criminality of apartheid. In light of this study’s findings that the variations of Palestinian circumstances are properly considered as constituting a single apartheid regime, this long-standing fragmented international approach, so far accepted in UN practice, may require review.
In the interests of fairness and completeness, the report examines several counterarguments that are advanced by Israel and supporters of its policies to deny that the Apartheid Convention is applicable to the circumstances of the Israel-Palestine relationship. These include arguments that Israel’s determination to remain a Jewish state is consistent with practices of other States, such as France; that Israel does not owe Palestinian non-citizens equal treatment with Jews precisely because Palestinians are not citizens; and that Israel’s domination of the Palestinians reflects no ‘purpose’ of domination but is a temporary state of affairs imposed on Israel by the realities of ongoing conflict and security requirements: None of these arguments are found here to be supportable and reasons are briefly summarized. Earlier sections of the report detail why common Israel claims that Israel cannot be culpable of apartheid on grounds that voting rights are accorded to Israel’s Palestinian citizens actually rest on two legal errors: an over-literal comparison to South African apartheid policy and detachment of the question of voting rights from other laws, especially Basic Law enacted by the Knesset, which prohibits any Palestinian party from challenging the Jewish character of the state.
The report concludes that the weight of the evidence supports beyond a reasonable doubt the proposition that Israel is guilty of imposing an apartheid regime on the Palestinian people, which amounts to the commission of a crime against humanity, the prohibition of which is considered jus cogens in international customary law. The various components of the international community, especially the United Nations and its agencies, and Member States, thus have a legal obligation to act to the limits of their capabilities to prevent and punish instances of apartheid that are responsibly brought to their attention. More specifically, States have a collective duty: (a) not to recognize an apartheid regime as lawful; (b) not to aid or assist a State in maintaining an apartheid regime; and (c) to cooperate with the United Nations and other States in bringing apartheid regimes to an end. Civil society institutions and individuals also have a moral and political duty to use the instruments at their disposal to raise awareness of this ongoing criminal enterprise, and to exert sufficient pressure on Israel so that it is persuaded to dismantle apartheid structures in compliance with international law.

The report ends with general recommendations as well as specific recommendations to the United Nations, national Governments, and civil society and private actors, aimed at recommending what actions should be taken in view of this report's finding that Israel maintains a regime of apartheid in its exercise of control over the Palestinian people. 

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