International Solidarity Movement

UN Rapporteur compares Israel to Apartheid South Africa
The Electronic Intifada, 27 February 2007

John Dugard

The UN’s Special Rapporteur for Human Rights in the Occupied Palestinian Territories, John Dugard, has issued a harshly critical report on Israel’s human rights record in regards to its treatment of the Palestinians in occupied Palestine. “The international community, speaking through the United Nations, has identified three regimes as inimical to human rights – foreign occupation, apartheid and colonialism,” Dugard says. In a report posted on the UN Human Rights Council’s website, due to be tabled this week, the South African law professor accuses Israeli regime of all three. Below follows an excerpt of the report.

OCCUPATION, COLONIZATION AND APARTHEID: IS THERE A NEED FOR A FURTHER ADVISORY OPINION?

The international community, speaking through the United Nations, has identified three regimes as inimical to human rights – colonialism, apartheid and foreign occupation. Numerous resolutions of the General Assembly of the United Nations testify to this. Israel’s occupation of the West Bank, Gaza and East Jerusalem contains elements of all three of these regimes, which is what makes the Occupied Palestinian Territory of special concern to the international community.

That the OPT is occupied by Israel and governed by the rules belonging to the special legal regime of occupation cannot be disputed. The International Court of Justice confirmed this in respect of the West Bank and East Jerusalem in its 2004 Advisory Opinion on the Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory (see, ICJ Reports, p. 136, paragraph 78), and held that the Fourth Geneva Convention relative to the Protection of Civilian Persons in Time of War, of 1949, was applicable to this Territory (ibid., para. 101). The Security Council, General Assembly and States Parties to the Fourth Geneva Convention have declared that this Convention is applicable to the entire OPT (ibid., paras. 96-99). Moreover, it is not possible to seriously argue, as Israel has attempted to do, that Israel has ceased to occupy Gaza since August 2005, when it withdrew its settlers and the Israel Defense Forces from Gaza. Even before the commencement of “Operation Summer Rains”, following the capture of Corporal Gilad Shalit on 25 June 2006, Israel was able to exercise effective control over the Territory by reason of its control of Gaza’s external borders, air space and sea space. Since that date it has exercised its military authority within Gaza by military incursions and shelling, in circumstances which clearly establish occupation.

Today there are over 460,000 Israeli settlers in the West Bank and East Jerusalem. Moreover, Israel has appropriated agricultural land and water resources in the West Bank for its own use. This aspect of Israel’s exploitation of the West Bank appears to be a form of colonialism of the kind declared to be a denial of fundamental human rights and contrary to the Charter of the United Nations as recalled in the General Assembly’s Declaration on the Granting of Independence to Colonial Countries and Peoples of 1960 (Resolution 1514 XV).

Israel’s practices and policies in the OPT are frequently likened to those of apartheid South Africa (see, for example, Jimmy Carter, Palestine: Peace, Not Apartheid (2006)). On the face of it, occupation and apartheid are two very different regimes. Occupation is not intended to be a long-term oppressive regime but an interim measure that maintains law and order in a territory following an armed conflict and pending a peace settlement.

Apartheid is a system of institutionalized racial discrimination that the white minority in South Africa employed to maintain power over the black majority. It was characterized by the denial of political rights to blacks, the fragmentation of the country into white areas and black areas (called Bantustans) and by the imposition on blacks of restrictive measures designed to achieve white superiority, racial separation and white security. Freedom of movement was restricted by the “pass system” which sought to restrict the entry of blacks into the cities. Apartheid was enforced by a brutal security apparatus in which torture played a significant role. Although the two regimes are different, Israel’s laws and practices in the OPT certainly resemble aspects of apartheid, as shown in paragraphs 49-50 above, and probably fall within the scope of the 1973 International Convention on the Suppression and Punishment of the Crime of Apartheid.

Colonialism and apartheid are contrary to international law. Occupation is a lawful regime, tolerated by the international community but not approved. Indeed over the past three decades it has, in the words of the Israeli scholar Eyal Benvenisti, “acquired a pejorative connotation”. What are the legal consequences of a regime of occupation that has continued for nearly 40 years? Clearly none of the obligations imposed on the occupying Power are reduced as a result of such a prolonged occupation. But what are the legal consequences when such a regime has acquired some of the characteristics of colonialism and apartheid? Does it continue to be a lawful regime? Or does it cease to be a lawful regime, particularly in respect of “measures aimed at the occupants’ own interests”? And if this is the position, what are the legal consequences for the occupied people, the occupying Power and third States? Should questions of this kind not be addressed to the International Court of Justice for a further advisory opinion? It is true that the 2004 Advisory Opinion on the Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory has not had the desired effect of compelling the United Nations to take firmer action against the construction of the Wall. On the other hand, it must be remembered that the United Nations requested four advisory opinions from the International Court of Justice to guide it in its approach to South Africa’s occupation of South-West Africa/Namibia. In these circumstances a request for another advisory opinion warrants serious consideration.

CONCLUSION: ISRAEL, PALESTINE AND THE FUTURE OF HUMAN RIGHTS

The Occupied Palestinian Territory is of special importance to the future of human rights in the world. Human rights in Palestine have been on the agenda of the United Nations for 60 years; and more particularly for the past 40 years since the occupation of East Jerusalem, the West Bank and the Gaza Strip in 1967. For years the occupation of Palestine and apartheid in South Africa vied for attention from the international community. In 1994, apartheid came to an end and Palestine became the only developing country in the world under the subjugation of a Western-affiliated regime. Herein lies its significance to the future of human rights. There are other regimes, particularly in the developing world, that suppress human rights, but there is no other case of a Western-affiliated regime that denies self-determination and human rights to a developing people and that has done so for so long. This explains why the OPT has become a test for the West, a test by which its commitment to human rights is to be judged. If the West fails this test, it can hardly expect the developing world to address human rights violations seriously in its own countries, and the West appears to be failing this test.

The EU pays conscience money to the Palestinian people through the Temporary International Mechanism but nevertheless joins the United States and other Western countries, such as Australia and Canada, in failing to put pressure on Israel to accept Palestinian self-determination and to discontinue its violations of human rights.

The Quartet, comprising the United States, the European Union, the United Nations and the Russian Federation, is a party to this failure. If the West, which has hitherto led the promotion of human rights throughout the world, cannot demonstrate a real commitment to the human rights of the Palestinian people, the international human rights movement, which can claim to be the greatest achievement of the international community of the past 60 years, will be endangered and placed in jeopardy.

The crime of being born Palestinian
by Anna Baltzer

Dawud Fakaah, father of six-month-old Khalid who died at Atara checkpoint outside Ramallah.

21 March 2007
for full text and photos, click HERE

Almost two weeks ago, my friend Dawud, a high school English teacher from Kufr ‘Ain, called me nearly in tears to report the checkpoint hold-up that had cost him his six-month-old son. Shortly after midnight on March 8th, my friend’s baby began having trouble breathing. His parents quickly got a taxi to take him to the nearest hospital in Ramallah, where they hoped to secure an oxygen tent, which had helped him recover from difficult respiratory episodes in the past. As the family was rushing from their Palestinian town in the West Bank to their Palestinian hospital in the West Bank, they were stopped at Atara checkpoint, where an Israeli soldier asked for the father’s, mother’s, and driver’s IDs. Dawud explained to the soldier that his son needed urgent medical care, but the soldier insisted on checking the three IDs first, a process that usually takes a few minutes. Dawud’s was the only car at the checkpoint in the middle of the night, yet the soldier held the three IDs for more than twenty minutes, even as Dawud and his wife began to cry, begging to be allowed through. After fifteen minutes, Dawud’s baby’s mouth began to overflow with liquid and my friend wailed at the soldier to allow them through, that his baby was dying. Instead, the soldier demanded to search the car, even after the IDs had been cleared. At 1:05am, six-month-old Khalid Dawud Fakaah died at Atara Checkpoint. As the soldier checked the car, he shined his flashlight on the dead child’s face and, realizing what had happened, finally returned the three ID cards and allowed the grieving family to pass.

Checkpoints and ID cards. Mention these words and any victim or witness of Apartheid can produce dozens of horror stories like Dawud’s. South Africa employed a similar system with its former Apartheid “Pass Laws,” which the South African Government used to monitor the movement of Black South Africans. Blacks had to carry personal ID documents, which required permission stamps from the government before holders could move around within their country. Similarly, Palestinians in the West Bank are required to carry Israeli-issued ID cards that indicate which areas, roads, and holy sites they are or are not allowed access to. Pass Laws enabled South African police to arrest Blacks at will. Similarly, Israeli occupation forces use ID cards not only to monitor Palestinian movement, but also to justify frequent arbitrary detention and arrest with general impunity. Jewish inhabitants of the West Bank (like all Jewish Israelis) have different ID cards, proclaiming their “Jewish” nationality, granting them automatic permission to access the modern roads and almost all holy sites that most Palestinians are restricted from.

Forty-seven years ago today, on March 21, 1960, hundreds of Black South Africans gathered in Sharpsville, South Africa and marched together in protest of the racist and dehumanizing Apartheid Pass Law system. South African white-controlled police forces fired on the unarmed crowd, killing at least 67 and injuring almost three times as many, including men, women, and children. Witnesses say that most of the people shot were hit in the back as they fled.

Almost fifty years after the Sharpsville Massacre, pass laws still plague the lives of the oppressed. Every day I meet West Bank Palestinians living without permits and ID cards, either because Israel never granted them residency on their land, or because soldiers or police confiscated their IDs as punishment or just harassment. I recently interviewed the family of Ibrahim, a twenty-year-old veterinary student who was arrested three years ago for the crime of not having an Israeli-issued ID card. Ibrahim’s parents were born and raised in the West Bank and own land in their small village of Fara’ata, where I interviewed them. In 1966, as newlyweds, the couple moved to Kuwait where they began working abroad. The year after, Israel occupied the West Bank and shortly after took a census. Any Palestinians who were not recorded due to absence — whether studying abroad, visiting family, or anything else — became refugees. Israel, the new occupier, stripped Ibrahim’s parents and hundreds of thousands of other Palestinians of their right to return to their homes and land, and effectively opened up the West Bank to colonization by any Jews who were willing to come.

Israel’s census strategy of 1967 bears a striking resemblance to the Absentee Property Law that Israel employed after the 1948 expulsions. According to Passia, the law “defines an ‘absentee’ as a person who ‘at any time’ in the period between 29 November 1947 and 1 Sept 1948, ‘was in any part of the Land of Israel that is outside the territory of Israel (meaning the West Bank or the Gaza Strip) or in other Arab states’. The law stipulates that the property of such an absentee would be transferred to the Custodian of Absentee Property, with no possibility of appeal or compensation. From there, by means of another law, the property was transferred, so that effectively the property that was left behind by Palestinian refugees in 1948 (and also some of the property of Palestinians who are now citizens of Israel) was transferred to the State of Israel.” To this day, the Jewish National Fund (JNF), which inherited much of the refugees’ land, combined with the Israeli state owns about 93 percent of the land of Israel. This land is exclusively reserved for the Jewish people and almost impossible to obtain for Palestinian citizens of Israel or the owners of the land themselves: the 1947-1948 refugees.

When I say 93 percent of “the land of Israel,” I am implying land within the internationally recognized 1967 borders of Israel, unlike the text of the 1950 Absentee Property Law itself, which defines “the Land of Israel” as all of Israel, the West Bank, and the Gaza Strip together. This was long before 1967, but makes the territories’ occupation less than two decades later either a tremendous coincidence or entirely unsurprising.

To this day, Palestinians like Ibrahim’s parents who were in the wrong place during the 1967 occupation and census — and their children — must apply for what is called “family reunification” from the Ministry of the Interior in order to legally reside in their own homes and villages. Passia writes, “the decision to grant or deny these applications is, according to Israeli Law, ultimately at the discretion of the Interior Minister, who is not required to justify refusal. In May 2002, Israel suspended the processing of family reunification claims between Palestinian citizens of Israel and Palestinians from the West Bank and Gaza to prevent the latter from acquiring Israeli citizenship, arguing that the growth in the non-Jewish population of Israel due to family reunification was a threat to the ‘Jewish character’ of the state.”

Family reunification applications not involving citizens of Israel were also frozen last year after the Hamas election, including the claims of Ibrahim and his family. The family returned legally to the West Bank in 1998 when Oslo projected Palestinians would have their own state, but when Israel’s occupation and settlement only accelerated, Ibrahim and his parents and five siblings were left with even fewer rights than the Palestinians with West Bank residency. Although the Palestinian Authority and DCO agreed that Ibrahim’s family could live in their village (and even provided them free education and health care), they still needed permission from Israel.

Ibrahim began veterinary school at An-Najah University in 2000, but had to commute over the Nablus hills since soldiers manning the checkpoints would never allow him to enter the city without an ID card. On March 23, 2004, during Ibrahim’s last semester before graduation, the Israeli Army caught him walking to school inside Nablus and put him in prison. This Friday marks three years exactly that Ibrahim — now 23 — has been in jail, his only crime that he has no Israeli-issued ID card. The first year Israel imprisoned Ibrahim within the West Bank, but the past two years he was held within Israel, a violation of international law — occupiers cannot hold prisoners and detainees from the occupied population in the occupying power’s land, because of how severely it limits prisoners’ rights. Indeed, Israel’s policy of generally imprisoning Palestinians in Israel means that their families often cannot visit them without permits to enter Israel, and they cannot even have a Palestinian lawyer since the lawyers from the West Bank and Gaza don’t have permits to practice law in Israel. Ibrahim’s father, for example, is a lawyer but can do nothing to help his son without an ID, let alone an Israeli license to practice law. Since he returned from Kuwait he has worked as a shepherd, since he can’t safely go anywhere outside his village without an ID.

Ibrahim’s situation is worse than most. Since his family has no ID cards they cannot even apply to enter Israel to visit him. Even Ibrahim’s sister, who obtained an ID via her husband back when Israel sometimes granted residency through marriage, cannot visit her brother since it is impossible to prove to Israel her relation to a person with no official name or identity.

“Nobody from the family has seen Ibrahim in two years,” his mother Hanan told me with my hand in hers after the report interview ended. “I send him gifts and receive news via the mother of another West Bank inmate in the same jail, a friend who occasionally gets permission from Israel to visit her son. Ibrahim is not even allowed the use the phone.” Hanan began to cry. “He’s the first thing I think about when I wake up and the last thing before I go to sleep. I cannot bear to imagine him there in prison, perhaps for the rest of his life, knowing how much he must be suffering, knowing that I can do nothing to help him. He did nothing wrong. His only crime is that he was born a Palestinian.”

Hanan has six children total, three of whom decided to settle in Jordan, where they could enjoy citizenship (Palestinians in the West Bank before 1967 had Jordanian ID cards), and Hanan hasn’t seen them in nine years. She wept again as she told me she has grandchildren and sons and daughters-in-law that she’s never met. Even if she wanted Jordanian citizenship now, she’s lost her chance having stayed outside Jordan for so long. And the family members who returned to claim their land and rights in the West Bank are now stateless, like so many millions of other Palestinian refugees in the diaspora.

Soldiers enclose and search a Palestinian man at Atara checkpoint.

In recognition of the tragic events of the 1960 Sharpsville Massacre, the UN declared May 21st the International Day for the Elimination of Racial Discrimination, pushing states around the world to redouble their efforts to combat all types of ethnic discrimination. Yet within Israel, a member of the United Nations, ethnicity still determines nationality (there is no Israeli nationality: Palestinians are “Arabs,” Jews are “Jewish”), resource allocation, and rights to own JNF and state land. There are discriminatory laws separating Palestinian families in Israel and threatening to revoke Palestinians’ Israeli citizenship and Tel Aviv University Medical School just announced a rule that defacto targets Palestinian prospective students.

In the rest of the so-called “Land of Israel,” the ethnic discrimination is much worse, from segregated roads to separate legal systems. I know what Israel will say: this is only self-defense. On some level this is correct: if Israel desires control the territory that it has for more than two-thirds of its history, and to remain the state exclusively of the Jewish people, and to be democratic as well, it must find a way to create a Jewish majority on a strip of land in which the majority of inhabitants are not Jewish. There are only so many possible solutions: there’s forced mass transfer (as was tried successfully in 1948, and is currently advocated by Israeli Deputy Prime Minister Avigdor Lieberman), there’s mass imprisonment (10,000 plus Palestinians are being held in Israeli jails as I write), there’s genocide … or there is apartheid. The more humane alternatives of Israel withdrawing to the 1967 borders or becoming a state of all citizens are not even on the bargaining table.

Apartheid and segregation failed in South Africa and the United States and they will fail in Israel and Palestine. Ethnocentric nationalism failed in Nazi Germany and it will fail in Zionist Israel. But until they do, the Ibrahims and baby Khalids of Palestine are counting on you and me to do something, to say something, since they themselves cannot. Silence is complicity. We cannot wait for things to get worse. The ethnic cleansing and apartheid have gone on long enough.

Anna Baltzer is a volunteer with the International Women’s Peace Service in the West Bank and author of the book, Witness in Palestine: Journal of a Jewish American Woman in the Occupied Territories. For information about her writing, photography, DVD, and speaking tours, visit her website at www.AnnaInTheMiddleEast.com