[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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