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Info Service on UN Sustainable Development (Mar22/13) Geneva, 23 Mar (Kanaga Raja) – “With the eyes of the international community wide open, Israel has imposed upon Palestine an apartheid reality in a post-apartheid world,” a United Nations human rights expert has said. In a report (A/HRC/49/87) to the UN Human Rights Council, the Special Rapporteur on the situation of human rights in the Palestinian territories occupied since 1967, Mr Michael Lynk, recommended that the international community accepts and adopts the findings by Palestinian, Israeli and international human rights organizations that apartheid is being practised by Israel in the occupied Palestinian territory and beyond. The rights expert called on the international community to assemble a diplomatic menu of accountability measures to bring the Israeli occupation and its practice of apartheid in the Palestinian territory to a complete end. “The international community should support any references or applications to the International Criminal Court and/or the International Court of Justice with respect to the legal consequences of the practice of apartheid in the occupied Palestinian territory,” said the Special Rapporteur. The Special Rapporteur further recommended that the United Nations re-establish the Special Committee Against Apartheid to investigate any and all practices of systematic discrimination and oppression purportedly amounting to apartheid anywhere in the world, including the occupied Palestinian territory. The Human Rights Council is currently holding its 49th regular session from 28 February to 1 April. FROM OCCUPATION TO APARTHEID In his report to the Human Rights Council, the Special Rapporteur examined the current human rights situation in the Occupied Palestinian Territory, with a particular emphasis on the question of whether Israeli rule over the occupied Palestinian territory can now be called apartheid. In his report, the Special Rapporteur said in the Palestinian territory that Israel has occupied since 1967, there are now five million stateless Palestinians living without rights, in an acute state of subjugation, and with no path to self-determination or a viable independent state which the international community has repeatedly promised is their right. The rights expert said over the past five decades, Israel has created 300 Jewish-only civilian settlements, all of them illegal, with 700,000 Israeli Jewish settlers now living in East Jerusalem and the West Bank in the midst of, but apart from, three million Palestinians. In Gaza, Israel has barricaded the two million Palestinians into what former British Prime Minister David Cameron called “an open-air prison,” a method of population control unique in the modern world. The rights expert said that in recent years, Israeli prime ministers have regularly and openly proclaimed that the country’s rule over the Palestinians and their land is permanent and that no Palestinian state will emerge. He said the international community has declared time and again that the Israeli rule over the Palestinian territory is an occupation, strictly governed by international humanitarian law, as well as by international human rights law. By their very nature, occupations are required to be built with wood, not concrete. Accordingly, Israel’s occupation must be temporary, it must be short-term, it is prohibited from annexing even a millimetre of occupied territory, any changes to the occupied territory must be as minimal as possible, it must comply fully with international law and United Nations resolutions, and it must cooperate in good faith with the Palestinian leadership to completely end the occupation and realize a genuine two-state solution, said the rights expert. “None of this has happened. Nor, on the available cogent evidence, is any of this likely to happen, absent concerted international intervention. Israel’s occupation has been conducted in profound defiance of international law and hundreds of United Nations resolutions, with scant pushback from the international community.” Its 55-year-old occupation long ago burst through the restraints of temporariness. It has progressively engaged in the de jure and de facto annexation of occupied territory, said the rights expert. “It insists that the laws of occupation and human rights do not apply to its regime. And its proliferating facts on the ground have virtually extinguished what lingering prospects remain for a genuine Palestinian state.” “A legal oxymoron has emerged: an occupation in perpetuity,” said the Special Rapporteur. “The inescapable question becomes: has the Israeli occupation curdled into something darker and more ominous?” The Special Rapporteur noted that distinguished voices in recent years have concluded that these inexorable facts amount to, or closely resemble, apartheid, and provided the following examples: * Ban Ki-Moon, the former Secretary-General of the United Nations, wrote in 2021 that Israel’s “structural domination and oppression of the Palestinian people through indefinite occupation … arguably constitutes apartheid.” * Nobel Laureate Desmond Tutu stated in 2014 that: “I know firsthand that Israel has created an apartheid reality within its borders and through its occupation.” * South African Foreign Minister Naledi Pandor spoke in 2022 about her country’s “… significant dismay at the continued apartheid practices of Israel against the long-suffering people of Palestine.” * Michael Ben-Yair, a former Attorney-General of Israel, said in 2022 that Israel has become “… an apartheid regime… a one state reality, with two different peoples living with unequal rights.” * Ami Ayalon, the former Director of Shin Bet, wrote in his memoir that: “We’ve already created an apartheid situation in Judea and Samaria, where we control the Palestinians by force, denying them self-determination.” * Two former Israeli ambassadors to South Africa – Ilan Baruch and Alon Liel – stated in 2021 that Israel’s systematic discrimination “… on the basis of nationality and ethnicity” now constitutes apartheid. International and Israeli human rights organizations have likewise issued substantive reports which have determined that Israel has created an apartheid rule, either in the West Bank or throughout Israel and the occupied Palestinian territory, said the Special Rapporteur. The rights expert cited Human Rights Watch as stating in 2021 that “… the Israeli government has demonstrated an intent to maintain the domination of Jewish Israelis over Palestinians across Israel and the OPT [Occupied Palestinian Territory].” Amnesty International concluded in 2022 that “Israel has perpetrated the international wrong of apartheid, as a human rights violation and a violation of international public law wherever it imposes this system.” According to the rights expert, B’Tselem found in 2021 that Israel has created a “regime of Jewish supremacy from the Jordan River to the Mediterranean Sea”, which constitutes apartheid, while Yesh Din issued a comprehensive legal opinion in June 2020 by human rights lawyer Michael Sfard which determined that the crime of apartheid is being committed by Israel in the West Bank. In his report, the Special Rapporteur examined whether Israeli rule over the occupied Palestinian territory can now be called apartheid, saying that the concept of apartheid – the term means “apartness” in Afrikaans – as an oppressive system of rule and a cornerstone legal prohibition in international law arose from the legal, political and social practices developed in southern Africa between the 1940s and the 1990s. It originated in South Africa as a declared state policy in 1948, and was also implemented in other settler-colonies in southern Africa, including Namibia and Rhodesia. “Today, apartheid has acquired a universal meaning that transcends the specific practices in southern Africa and is applicable wherever it may exist,” said the Special Rapporteur. The rights expert said the legal prohibition against apartheid has become well-established through both customary and conventional international law. It is regarded today as a jus cogens norm, a peremptory norm of international law for which no derogation is allowed. “Elevating apartheid to the most serious of crimes in international law places it in the same category as war crimes, wars of aggression, territorial annexation, genocide, slavery, torture and crimes against humanity. And as a jus cogens norm, this gives rise to obligations erga omnes, creating a legal duty on all states to cooperate in order to end the violation.” The Special Rapporteur said that the relevant international law establishes that the occupied Palestinian territory is a territorial unit where the prohibition against apartheid can be applied to assess whether apartheid practices exist. He said among the factors that support this conclusion are the universal application of customary international law; the ratification by both Israel and Palestine of the 1965 International Convention for the Elimination of All Forms of Racial Discrimination (ICERD); the ratification by Palestine of the Convention Against Apartheid and the Rome Statute; and the customary international humanitarian law status of the prohibition against apartheid. APPLICATION OF THE APARTHEID TEST Since the beginning of its occupation in June 1967, Israel’s rule over the Palestinian territory has been epitomized by two core features, said the Special Rapporteur. The rights expert said first is the establishment of designed-to-be irreversible “facts-on-the-ground”: the creation of 300 civilian settlements, with 700,000 Jewish settlers, meant to demographically engineer an unlawful sovereignty claim through the annexation of the occupied territory while simultaneously thwarting the Palestinians’ right to self- determination. “And second, the development of an oppressive system of military rule over the 2.7 million Palestinians in the West Bank, a shrunken and tenuous range of residency rights for the 360,000 Palestinians living in East Jerusalem, and a medieval military blockade of the two million Palestinians in Gaza.” These two features are deeply intertwined: it is impossible for an acquisitive occupying power to settle hundreds of thousands of its citizens into occupied territory, create for them attractive living conditions equivalent to the home territory, and expropriate and alienate huge swaths of land and resources for their benefit and security, without also immiserating the indigenous people and triggering their perpetual rebellion, said the Special Rapporteur. He said the past 70 years has taught us that a covetous alien power has two choices: either to abandon the fever- dream of settler-colonialism and recognize the freedom of the indigenous people, or instead to double-down with increasingly more sophisticated and harsher methods of population control as the inevitable consequence of entrenching permanent alien rule over a people profoundly opposed to their disenfranchisement and destitution. “Israel has chosen the second path,” said the Special Rapporteur, adding that, “We must ask ourselves: Has this occupation now congealed into apartheid?” According to the Special Rapporteur, at the heart of Israel’s settler-colonial project is a comprehensive dual legal and political system which provides comprehensive rights and living conditions for the Jewish Israeli settlers in the West Bank, including East Jerusalem, while imposing upon the Palestinians military rule and control without any of the basic protections of international humanitarian and human rights law. Against the grain of the 21st century, Israel assigns, or withholds, these rights and conditions on the basis of ethnic and national identity, he added. Politically and legally, Jewish Israeli settlers enjoy the same fulsome citizenship rights and protections as Israeli Jews living inside the country’s 1949 borders. The 475,000 Israeli settlers in the West Bank, all of whom live in Jewish-only settlements, have the full panoply of laws and benefits of Israeli citizenship extended to them personally and extra-territorially. The Special Rapporteur said that like Israelis in Tel Aviv or Eilat, the West Bank settlers have the same access to health insurance, national insurance, social services, education, regular municipal services and the right of entry into and out of Israel and around much of the West Bank. They also received targeted benefits and incentives from the Israeli government to live and work in the settlements. The rights expert said the settlers are an integrated part of a wealthy society with a European standard of living. The utilities and services which the settlements enjoy – water, power, housing, access to well-paid jobs, roads and industrial investment – are far superior to those available to the Palestinians. If settlers are charged with a crime, they are tried in an Israeli court with the full protection of Israeli criminal law. These settlers have the right to vote in Israeli elections, even though Israeli laws formally restrict the ability of Israeli citizens who live outside the country’s territory to vote. In sharp contrast, the 2.7 million Palestinians living in the West Bank enjoy none of the rights, protections and privileges possessed by the Israeli Jewish settlers living among them. They can vote in elections (when they are held) for the Palestinian Authority, but it has exceptionally limited powers. The rights expert said they have no democratic or political rights to hold accountable the occupying power which exercises overwhelming control over their lives. “The ubiquitous barriers to freedom of personal and commercial movement throughout the occupied territory has resulted in a structurally de-developed economy.” The United Nations Conference on Trade and Development has estimated that Israeli closures, the confiscation of land and resources, rapacious settlement growth and military operations have cost the Palestinian economy $57.7 billion in arrested development since 2000, said the Special Rapporteur. Yet, notwithstanding the travails of the occupation, Palestinian society has become highly literate and quite well- educated. The result is a dynamic and talented population whose economy has become depleted and impoverished by a protracted military occupation, which is heavily dependent on international aid and which has only 1/13th the GDP per capita of Israel, said the rights expert. The lives of the Palestinians in the West Bank are governed by more than 1,800 military orders issued since 1967 by the Commander of the Israeli Defence Forces, covering such issues as security, taxation, transportation, land planning and zoning, natural resources, travel and the administration of justice, said the report. In particular, Israel has imposed a military legal system in the West Bank which applies to Palestinians, but not the Jewish settlers. The focus of the military legal system is the regulation of security, which covers such offenses as participating in protests and non-violent civil disobedience, standard criminal acts, traffic violations, terrorism, membership in over 400 banned organizations, taking part in political meetings and engaging in civil society activities. Palestinians arrested for security offences can be detained without charge for a much longer time period than Israeli settlers, said the Special Rapporteur. He said the military legal system is presided over by Israeli military judges, trials are conducted in Hebrew (which many Palestinian detainees do not speak), it offers very few of the procedural and substantive protections of a purposive criminal legal system, the prisoners’ lawyers are significantly restricted in their access to evidence, and the conviction rate is over 99 percent. The rights expert said that even more draconian, there are, at any one time, hundreds of Palestinians imprisoned indefinitely through administrative detention, where they are incarcerated without the facade of a formal proceeding, that is: without charges, evidence, a trial or a conviction, and whose detention can be extended indefinitely. Investigations by Israel’s military into deaths and serious injuries rarely result in any accountability. A central strategy of Israeli rule has been the strategic fragmentation of the Palestinian territory into separate areas of population control, with Gaza, the West Bank and East Jerusalem physically divided from one another, he said. The West Bank itself is further splintered into 165 disconnected enclaves. This strategic fragmentation – divide et impera – is geographically enforced by Israel through an elaborate series of walls, check-points, barricades, military closure zones, Palestinian-only roads and Israeli-only roads. The Special Rapporteur said Israel closely monitors Palestinian society through advanced cyber-surveillance and its full control over the Palestinian population registry. The occupied Palestinian territory lacks any secure land, sea or air access to the outside world, with Israel controlling all of its borders (with the exception of the Rafah crossing between Gaza and Egypt). “This geographic division not only severs the Palestinians under occupation from each other socially, economically and politically, but also from Palestinians living in Israel and the wider world,” said the rights expert. In the West Bank and East Jerusalem, Palestinian lands – the single most important natural resource in the territory – are being steadily expropriated by Israel for Jewish-only use and settlement, buttressed by discriminatory planning laws and military orders, he added. Since 1967, Israel has confiscated more than two million dunams of Palestinian land in the West Bank, which have been used to build settlements, Israeli-only highways and roads, recreational parks, industrial centres and military bases and firing zones, all for the purpose of cementing a permanent and immovable demographic presence. According to Peace Now in 2018, the allocation of 99.76 percent of state land has been for the exclusive use of Israeli settlements. Unlike Jewish settlers, Palestinians have no representation or voice in decision-making over zoning and property use throughout most of the West Bank. In turn, said the Special Rapporteur, the Israeli military frequently orders the demolition of Palestinian homes and property built without a permit: the number of structures demolished in 2020 and 2021 are the second and third highest annual rates since these figures were first recorded in 2009. “And outside of official expropriation policies are the tolerated actions of Israeli settlers, whose violence has been regularly employed to seize Palestinian land or make its use untenable.” In East Jerusalem, the 360,000 Palestinians have a more enhanced social and legal status than Palestinians in the West Bank, but their position is still greatly inferior to the 230,000 Jewish settlers, who live among them in Jewish- only settlements. The rights expert said in Gaza, Israel’s apparent strategy is the indefinite warehousing of an unwanted population of two million Palestinians, whom it has confined to a narrow strip of land through its comprehensive 15-year-old air, land and sea blockade (with further restrictions by Egypt on Gaza’s southern border). “Across most of Israel’s political spectrum is a widely-held consensus: Israel will keep East Jerusalem and either most or all of the West Bank, whether or not there is a peace agreement, and the Palestinians will remain under its permanent security control.” The Special Rapporteur said Israel’s administration of its occupation has been replete with a range of inhuman(e) acts prohibited by the Convention Against Apartheid and the Rome Statute, including denial of the right to life and liberty; denial of full participation in all features of a society; measures which divide the population along racial lines; exploitation of labour of a racial group; and other inhuman(e) acts causing great suffering, such as the torture of Palestinians in detention. CONCLUSION International humanitarian law permits differential treatment of an indigenous population during an occupation, but only in a restricted fashion, said the report by the Special Rapporteur. Such treatment must be anchored in the principle that any infringements to human rights and equality is to be as minimal and proportional as possible during the conduct of an occupation that is both temporary and short-term, it added. “This is not the case in Israel’s 55-year-old occupation. Permanent alien rule over occupied territory and its indigenous population is the anti-thesis of international humanitarian law and, in recent decades, the inexorable Israeli occupation has become indistinguishable from annexation.” “Is this situation now apartheid,” asked the Special Rapporteur. Applying each of the three steps of the amalgamated test from the Convention Against Apartheid and the Rome Statute, the Special Rapporteur concluded that the political system of entrenched rule in the occupied Palestinian territory which endows one racial-national-ethnic group with substantial rights, benefits and privileges while intentionally subjecting another group to live behind walls, checkpoints and under a permanent military rule “sans droits, sans egalite, sans dignite et sans liberte” satisfies the prevailing evidentiary standard for the existence of apartheid. He said firstly, an institutionalized regime of systematic racial oppression and discrimination has been established. Israeli Jews and Palestinian Arabs in East Jerusalem and the West Bank live their lives under a single regime which differentiates its distribution of rights and benefits on the basis of national and ethnic identity, and which ensures the supremacy of one group over, and to the detriment of, the other, he added. (The Palestinian Authority exercises restricted jurisdiction and provides services in limited parts of the West Bank that Israel has no interest in delivering.) The Special Rapporteur said that the differences in living conditions and citizenship rights and benefits are stark, deeply discriminatory and maintained through systematic and institutionalized oppression. Secondly, this system of alien rule has been established with the intent to maintain the domination of one racial- national-ethnic group over another. Israeli political leaders, past and present, have repeatedly stated that they intend to retain control over all of the occupied territory in order to enlarge the blocs of land for present and future Jewish settlement while confining the Palestinians to barricaded population reserves. “This is a two-sided coin: Israel’s plans for more Jewish settlers and larger Jewish settlements on greater tracts of occupied land cannot be accomplished without the expropriation of more Palestinian property together with harsher and more sophisticated methods of population control to manage the inevitable resistance. Under this system, the freedoms of one group are inextricably bound up in the subjugation of the other,” said the rights expert. And third, the imposition of this system of institutionalized discrimination with the intent of permanent domination has been built upon the regular practice of inhuman(e) acts, he said. “Arbitrary and extra-judicial killings. Torture. The violent deaths of children. The denial of fundamental human rights. A fundamentally flawed military court system and the lack of criminal due process. Arbitrary detention. Collective punishment.” The repetition of these acts over long periods of time, and their endorsement by the Knesset and the Israeli judicial system, indicates that they are not the result of random and isolated acts but integral to Israel’s system of rule, said the Special Rapporteur. “This is apartheid. It does not have some of the same features as practiced in southern Africa; in particular, much of what has been called “petit apartheid” is not present.” On the other hand, said the rights expert, there are pitiless features of Israel’s “apartness” rule in the occupied Palestinian territory that were not practised in southern Africa, such as segregated highways, high walls and extensive checkpoints, a barricaded population, missile strikes and tank shelling of a civilian population, and the abandonment of the Palestinians’ social welfare to the international community. “With the eyes of the international community wide open, Israel has imposed upon Palestine an apartheid reality in a post-apartheid world,” the Special Rapporteur concluded.
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