Arab Center Washington DC

FEBRUARY 06, 2021

Jonathan Kuttab

Also printed in The New Arab

For many years, based on their own experience in 1948 and 1967, Palestinians have accused Israel of being an apartheid state, while Israel’s defenders have vehemently denied the charge. The discussion usually centers on the occupied Palestinian territories, particularly the West Bank and  East Jerusalem, where over 642,000 Israeli settlers live in settlements under a clearly separate and different set of laws and regulations. The discussion is also often bogged down in comparisons with the former South African apartheid regime, with Israel exhibiting similarities and differences between its own situation and the one that prevailed in South Africa until the early 1990s. Former US President Jimmy Carter created a huge stir in 2006 when he published his book, Palestine: Peace Not Apartheid, and warned that Israel was in danger of becoming an apartheid state if it does not relinquish the occupied territories and allow for the establishment of a Palestinian state in the West Bank and Gaza in accordance with the two-state formula.

The Elements and Context of Apartheid

The discussion was revived recently by a number of factors, including the publication of a report by Israel’s largest human rights organization, B’Tselem. It claims that Israel constitutes a system of apartheid and that the practice is no longer just a feature of the occupied territories but extends to the entire area that lies between the Jordan River and the Mediterranean Sea. This view was bolstered by the wave of discriminatory legislation within the pre-1967 borders that culminated in the Nation State Law of 2018, which confirmed as a Basic Law that Israel is a Jewish state and that only Jews are entitled to self-determination in that state.

Another reason for the renewed interest in this issue is the growing realization that the prospects of a two-state solution for the Palestinian-Israeli conflict are disappearing, that Israeli control over all of historical Palestine has become a reality, and that Israel’s occupation of lands it acquired in 1967 is no longer a temporary situation. Israel’s much-touted success in providing COVID-19 vaccinations to its population, while refusing to give vaccines to most Palestinians under its control, also gave rise to accusations of a “vaccine apartheid.” The Israeli government recently decided to provide Palestinians in East Jerusalem with 5,000 vaccine doses, but none were offered to others in the occupied West Bank and the Gaza Strip.

The truth is that for over half a century, Israel has acted as the real sovereign with full power, authority, and control over all of historical Palestine. Its army controls the whole area as well as its borders, coasts, air space, water resources, and currency. The Israeli Knesset legislates for the entire area and creates, at will, the systems governing it as well. The fact that under Israel’s control, different regimes are applied to the Palestinians living in different parts of the area, and that some authority and responsibility is delegated to the Palestinian Authority (PA) in portions of the occupied West Bank, does not change this reality. This was the case with the creation of Bantustans in South Africa; they did not exempt the country from responsibility for the residents of those areas. They also did not allow the South African regime to claim that it is a democracy within its white areas and that the self-governing Bantustans are “independent” within their prescribed borders.

The question of whether Israel and its leaders are guilty of racial or ethnic segregation should not simply be reduced to a discussion point for political propaganda or public relations. Apartheid today is an international crime for which individual leaders and politicians can be tried before the International Criminal Court (ICC). The Rome Statute, which created the ICC, specifically lists apartheid as a crime and as one of the bases for its jurisdiction. Apartheid is also listed as a “grave breach” in the Geneva Conventions governing people and areas under military occupation. The fact that Israel refuses to accept the applicability of the Geneva Conventions, and often claims that the areas are not truly “occupied” but belong to it under a variety of arguments, only strengthens the urgency to examine Israel’s behavior with respect to the entire area of historical Palestine.

The elements of the crime of apartheid are now a matter of law. A comparison with South Africa may be unfair, and sometimes even to South Africa, as certain elements of the situation in Israel/Palestine are, in fact, even worse in their application. It is therefore important to examine the facts to see if the elements of the crime of apartheid do exist and are found in the state of Israel today.

Apartheid in International Law

The International Convention on the Suppression and Punishment of the Crime of Apartheid, adopted by the UN General Assembly on November 30, 1973, defines the crime of racial separation. Article II states:

For the purpose of the present Convention, 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 the following 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 article goes on to describe a variety of ways in which apartheid is practiced and the inhumane acts that are prohibited, including legislation concerning human rights and freedoms, education, residency and free movement rights, marriage, property, and many other day-to-day practices of groups and communities.

In essence, a careful analysis of the convention shows that there are three elements necessary to find a crime of apartheid: a regime of separation or segregation on the basis of race, creed, or ethnicity; the use of a legal system and legislative measures for enforcement of such separation; and the commission of inhumane acts and violations of human rights and denial of freedoms and forced ghettoization.

Apartheid in Palestinian Areas

In applying these criteria, it is important to take into consideration that the entire area of historical Palestine, between the Mediterranean Sea and the Jordan River, is currently fully controlled by one group, the Israeli government and its military. What often confuses the issue is that Israel has created a number of different regimes of control over Palestinians in that area, with some policies obtaining different terms than others.

Palestinians have been divided into four groups. The first are Palestinian citizens of Israel, who currently have greater freedom of movement (than other groups of Palestinians) and are accorded the right to vote in Israeli Knesset elections, although they experience many inequalities and restrictions in public life. The second group are those Palestinians who reside in East Jerusalem but are not citizens. The third are residents of the rest of the occupied West Bank, and the fourth are the residents of the Gaza Strip. An additional fifth category consists of Palestinian refugees who are simply barred from returning to the country altogether. Each of these groups experiences apartheid differently, but the overall scheme is governed by the same ideology and policy of privileging Jews over non-Jews.

The first group (Palestinian citizens of Israel) were kept under military rule between 1948 and 1966 with their physical mobility and mevement severely restricted and the development of their areas and towns stymied. Laws and zoning regulations were specifically passed with the announced goal of “Judaizing” the Galilee, where most of them live. In the Negev, many Palestinian villages and towns are still not “recognized” and are denied basic services and opportunities to develop normally through zoning regulations, and some of these villages are routinely and repeatedly demolished by the Israeli authorities. The Knesset openly debated whether certain areas in the northeast should be transferred to the Palestinian Authority in a peace deal with the Palestinians, thus unilaterally changing the status of the inhabitants of these areas and depriving them of voting in Knesset elections. Meanwhile, their representatives are deliberately kept out of the policy-making process. An unspoken rule prohibits Palestinian parties from joining any government coalition (it is noteworthy that all governments in Israel, since its creation, have been coalition governments) while any Palestinian party running for elections could be declared illegal if it does not accept the Zionist concept that Israel is a Jewish state. Many laws, capped by the (now constitutional) Nation State Law, confirm this discrimination and enshrine the privileges of Jews over Palestinians, even if the latter are Israeli citizens.

The second group, the East Jerusalemites, has been designated as “residents, but not citizens,” with possible movement to the status of Israeli Palestinian citizens when Israel formally annexed East Jerusalem on July 30, 1980. It is important to note that Jews living in Jerusalem are treated as full citizens, but Palestinians have a unique hybrid status and have been denied the same rights.

The third group in the occupied West Bank is further subdivided geographically into Areas A, B, and C and lives under military occupation. Certain powers and responsibilities in the most densely populated Area A (around 18 percent of the West Bank) have been delegated to the Palestinian Authority, based on the Oslo Accords of the 1990s, as an interim measure lasting five years. However, this case has persisted for a quarter century and shows no prospect of ending soon. Jews—whether citizens of Israel or not—living in the Jewish settlements in Area C, enjoy a totally separate system of laws, courts, police, health, educational and social services, and even a separate road system. Non-Jews cannot enter the areas of the Jewish gated communities without a permit issued by the relevant authorities.

People in Gaza live in what has been called an open-air prison, with Israel controlling air space, the coast, all points of entry and exit, and even the population registry. While, for security reasons, Israel vacated its Jewish settlers from Gaza in 2005, it continues to hold effective power in the area.

Enforcing Apartheid through Legislation

What is significant about these divisions is that it was Israel itself, through its own legislature and army, that has determined the separate regimes and controls what happens in them. The regimes are stipulated in a formal written legislative scheme and are intended to further the control of one group, Israeli Jews, over another—the Palestinian Arab population. The latter group is restricted in its location of residence as well as in its movement and travel, and even between the different areas (Israel, West Bank, Jerusalem, Gaza, and abroad). Numerous checkpoints are placed at intersections between the different areas to ensure the constant separation.

A 29-foot wall that in Israel is actually called “the separation wall” (geder hafrada) has been erected with carefully guarded gates to restrict movement and access. This wall has already been judged illegal by a near unanimous decision of the International Court of Justice in 2004. In addition, Israel has placed signs in Arabic, Hebrew, and English at the entrances of all Palestinian towns in Area A of the occupied West Bank alerting Israelis that it is illegal for them to enter the areas under the control of the Palestinian Authority. While such segregation is not used to prevent entry of Palestinians into these areas, it effectively prevents Jewish Israelis from doing so. The security coordination between Israel and the PA is often utilized to track down such entrances by Jews into Palestinian cities, purportedly for their own protection.

Access to the entire Gaza Strip is severely controlled for both goods and persons; in addition, through agreements with Egypt with respect to the southern border, a full siege that has been in place for the last 14 years has been created. Very limited access is allowed for staff of humanitarian organizations to enter Gaza from Israel; at the same time, Palestinian staff members who hold Israeli passports or East Jerusalem identity cards are almost never allowed in.

The point is that hafrada(Hebrew for separation) is an openly stated policy of the Israeli government and, through different methods of control and segregation, it is intended to further the control over one group by another. Separation, i.e., separate and unequal, is the essential first element in the crime of apartheid.

Legislation to enforce segregation based on race, ethnicity, and religion is the second element and is not haphazard or spontaneous. There are laws, regulations, and military orders that are enforced by Israeli civil and military courts. In Israel, this is legislated in the Knesset both through discriminatory laws that favor Jews as well as by reliance on the old British Emergency Regulations, which are selectively and disproportionately used against Palestinians. Such legislation is also reflected in discriminatory zoning schemes that prevent building and land use by Palestinians except in designated heavily populated areas, at the risk of continuing demolition orders that have become a daily feature of Palestinian life under Israeli control.

There is extensive documentation by Israeli, Palestinian, and international human rights organizations as to the practices used to impose and enforce the segregation regime, which constitute the third element of the crime. These practices include torture and mistreatment of prisoners, administrative detention, demolition of houses (used both as a punitive measure and to prohibit development and residency in restricted areas), restrictions on residency and travel and on the movement of goods and people, and collective punishment. Israel also implements identity card systems and distinctive car license plates to assist the authorities in enforcing the policies of separation. In Israel itself, and in East Jerusalem, the British Emergency Defense Regulations are used as the legal basis for such practices, which are applied by the police and the border patrol. In the other areas, military orders provide the legal basis and are carried out by the army under the Israeli Ministry of Defense.

Such violations of human rights and basic freedoms, while illegal under international law, do not in and of themselves necessarily constitute the crime of apartheid. It is when they are used as a means of controlling and dominating one group (the Palestinians) by another (the Israeli state) that they fulfill the definition of crime of apartheid.

It is therefore abundantly clear that Israel today is an apartheid state fulfilling all the elements of that crime under international law. The temporary and emergency nature of its practices can no longer be used as an excuse. The legislative process that enshrines these policies is clearly of a permanent nature, and it is time for the International Court of Justice to investigate this matter and bring those responsible to justice.

Jonathan Kuttab is a leading human rights lawyer and a Non-resident Fellow at Arab Center Washington DC. He is a resident of East Jerusalem and a partner of Kuttab, Khoury, and Hanna Law Firm there. He is the co-founder of Al-Haq, the first international human rights legal organization in Palestine, and of the Palestine Center for the Study of Nonviolence.

Jonathan Kuttab

original article Arab Center Washington DC

The illegality of Israel’s civilian settlements in territories it occupied in 1967 is one of the few clearly settled issues in international law. The Geneva Conventions provisions on this issue are clear and explicit: civilian settlement activities are considered grievous breaches and war crimes. Furthermore, the issue was litigated and decided by the International Court of Justice in a rare, almost unanimous ruling of 15 judges in the case of Israel’s Separation Wall in 2004. The lone dissenting judge in that case wrote that even he agrees with the majority on the issue of the applicability of the Geneva Conventions.

So how does Israel justify such a clearly blatant violation? The answer lies in a number of arguments offered over the years, both in courts (primarily the Israeli High Court) and in legal publications and the press, as well as statements of Israeli officials. Following is a list of such arguments with a brief response, in bold italics, to each:

1. 1. Israel voluntarily applies the “humanitarian” but not the “political” provisions of the Geneva Conventions. Settlements are political issues and therefore are not to be governed by the Geneva Conventions.

No distinction like this has ever been known in international law, and Israel has not even tried to specify which provisions of the Geneva Conventions it considers to be “humanitarian.”

2. 2. While Israel signed the Geneva Conventions, its Knesset did not ratify them; therefore, they never became part of Israeli domestic law. The Israeli courts are therefore not free to apply them as Treaty law but must only apply the Hague Conventions, being part of traditional (conventional) international law, which is automatically part of Israel’s law—but not Treaty law, which needs to be specifically ratified and incorporated into Israeli law by the Knesset.

This argument explains how the Israeli High Court, as a domestic court, avoided the obligation to apply the Geneva Conventions, but it does not address Israel’s international obligation to follow the Geneva Conventions, which it signed.

3. 3. The movement of civilians into occupied territories, which is prohibited by the Geneva Conventions, only applies to forced marches and the imposed movement of civilians. It has no application where the movement of civilian Israeli settlers is a voluntary action by the settlers themselves.

The authoritative Pictet Commentary on the Geneva Convention, issued by the International Committee of the Red Cross, addresses this very argument and specifies that any movement of civilians into or out of the occupied territories is illegal. It does not accept this interpretation.

4. 4. The settlements are needed for security and are therefore legitimate, even though they are civilian complexes. As a “belligerent occupier,” the Israeli army has every right to set up security structures; Israeli settlements were initially started inside army compounds as part of the occupation and only later were turned over to civilian rule. Given Israel’s democratic and egalitarian nature, civilian settlements—and not just a professional full-time army—have always played a central role in the defense of the country. This argument was used by the Israeli High Court in its Elon Moreh decision, which did, in fact, hold that the status of the occupied territories is “belligerent occupation.” However, the court said it needs to examine in each case whether the security or ideological consideration were predominant in taking private Arab land for settlements. Where security considerations were predominant, or where the land in question was public and not private, the High Court will not intervene.

Whatever the merits of that argument under Israeli domestic law, it has no weight whatsoever in international law, which categorically prohibits the movement of civilians into the occupied territories. It is disconcerting that US Secretary of State Mike Pompeo says that only Israeli courts can judge this issue of the illegality of settlements.

5. 5. The Geneva Conventions only apply to territories captured in a war of aggression, but not to territories that come under the control of a country in a defensive war where others are the aggressors.

The Geneva Conventions and international law do not make such a distinction. Apart from the difficulty of establishing which wars are “aggressive” and which are “defensive,” particularly when the army that starts hostilities claims it is acting in a “preemptively defensive” fashion, the Geneva Conventions were concerned with protecting civilians who fall under the rule of another army. They also addressed the disruptive effect on the international order of any acquisition of territories after a war, where moving civilian populations into or out of occupied territories would be a complicating factor.

6. 6. The Geneva Conventions only apply to territories taken from a recognized sovereign. Egypt was not, nor claimed to be, a sovereign in Gaza, and Jordan’s claim to sovereignty is weak and was only recognized by England and Pakistan. Therefore, there was no sovereign whose property and population comes under the purview of the Geneva Conventions.

This argument is very problematic. It does not address the question of the Golan Heights, which was clearly Syrian sovereign territory. In addition, Jordan’s claim over the West Bank was generally accepted internationally (as much as Israel’s claim to West Jerusalem). More importantly, the thrust of the Geneva Conventions was not to settle historic or national claims between countries but to provide protection for civilians and to prevent demographic changes from occurring as a result of armed conflict. The entire structure of the international order would be in great jeopardy if the 190+ countries of the world were to resort to war to acquire land, which they claim on a historic or ethnic basis, and then move their civilian populations into the lands they occupy by force.

7. 7. In the absence of a legitimate sovereign, the Jewish people are the “missing reversioners” and the true sovereign in the area in light of their genuine sovereignty over 2,000 years ago. That claim is greater than the claim of any other country, and in the absence of other legitimate claims, Israel itself is the sovereign and cannot be an “occupier” of what is its historic right.

This argument was first offered by Yehuda Blum, Israel’s representative at the United Nations, and has been quoted repeatedly by Israeli writers. It has never been used or accepted by any international authorities and is often referred to as “novel.”  Historically, the whole of Palestine lying at the intersection of three continents has seen many invaders and empires set up rule over it, and modern countries that claim descent from these historic invaders would include Syria, Iraq, Iran, Saudi Arabia, Egypt, Turkey, Greece, and Italy.

8. 8. If the settlements stay long enough, gradually the world will accept them and they will become part of the reality which must be dealt with. Even Palestinians have accepted, and will accept, the settlements, or at least the settlement blocs, and they will negotiate about the rest.

This seems to be the most powerful argument, and it is one that Israeli Prime Minister Benjamin Netanyahu has been using frequently. He perhaps thinks that if international law prohibits this, then he can change international law. At its heart, this argument of establishing facts on the ground or “might makes right” is a thorough repudiation of international law and an invitation to international chaos and lawlessness. That is the danger in President Donald Trump’s positions, whether on the Golan, Jerusalem, or the issue of settlements.

Jonathan Kuttab is a Human Rights Lawyer and a Non-resident Fellow at Arab Center Washington DC

JONATHAN KUTTAB

April 27, 201922:55192

Read the Original at Arab News

One of the worst decisions for world peace made by the Trump administration has not received enough attention. Withdrawal from the Paris climate accords was bad, revoking the Iran deal sent a signal that international agreements signed by a US president may not be honored by subsequent administrations, and the successful intimidation of the International Criminal Court has caused dire consequences for the international order.

But the worst decision by the Trump administration is the cavalier reversal of a principle that has been the bedrock of international stability since the Second World War. In order to ensure that countries can longer benefit by invading and occupying weaker neighbors, the world unanimously agreed on the “inadmissibility of the acquisition of territory by war.” Attempts to violate this principle (Iraq in Kuwait, Russia in Ukraine, and Israel in Jerusalem and the Golan) were universally condemned and rejected. This principle was mentioned in the preamble of UNSC 242 and has been a fundamental principle of international law since the mid-1990s.

US officials, trying to justify the Trump administration’s sudden recognition of the illegal annexation by Israel of the Syrian Golan Heights, argued that the territory was acquired in a “defensive” war; and that in any case Syria is embroiled in a civil war and its current leader is not worthy of having his land back.

The defensive war justification does not hold water. Western governments, international human rights organizations and jurists, including some Israeli jurists, acknowledge that the prohibition against acquiring territory by war makes no reference to whether the war is defensive or offensive.  Israel claims that it started the June 1967 war because it feared an assault from Egypt. President Abdul Nasser had blocked the Straits of Tiran, and removed the UN peacekeeping forces established in Sinai following Israel’s invasion of Egypt in 1956.  Arabs dispute this and commonly refer to the 1967 war as an aggression against them. This only underlines the point that both sides in any war can claim to act “defensively,” which is why international law makes no distinction between a defensive or offensive war when it prohibits the “acquisition of territory” during war.  

The problem with Washington’s action is that it forms a dangerous precedent. No sooner had Israeli Prime Minister Benjamin Netanyahu returned from Washington after the Golan decision when he began talking about annexing portions of the West Bank, which would totally destroy the possibility of a peaceful resolution based on a two-state solution.

The effects of the reckless policy of President Trump will not be limited to the Middle East. Countries the world over that have an ambition to capture land they believe traditionally belongs to them will now have a strong precedent. “If the Americans and Israelis can do it,” they will say, “then so can we.”

Jonathan Kuttab

The consequences of Donald Trump’s recognition of the annexation of occupied Syrian territories extend far beyond the Middle East conflict, and sends a green light to every country in the world. If this principle is abandoned no one would be able to object to Russia claiming parts of Ukraine, or Saudi Arabia claiming parts of Yemen, Iraq demanding Kuwait be its 19th district, and so many other land disputes. Numerous countries in Africa, Asia and Europe have territorial disputes with neighboring countries, and may choose to resolve the issue by forcibly retaking territory to which they have some historic or tribal claim.

The Nazi war machine was so brutal, and its occupation of many countries in Europe so nasty, that the world community rose up and agreed on principles that were coded into international law. The Fourth Geneva Convention was written and approved in 1949 precisely to give protection to civilian populations falling under belligerent military occupation until peace is restored and their territories relinquished by the conquering armies. The occupier, in particular, is prohibited from moving its civilian population into the occupied territories (which is why all Israeli settlements are illegal under international law).  This was affirmed in the 2003 decision of the International Court of Justice in the case of Israel’s wall built deep in Palestinian occupied territory. Natural wealth, artifacts and resources in occupied areas cannot be legally taken by an occupying power. Annexing occupied areas is totally rejected.

For decades, successive US Democratic and Republican administrations, for all their support of Israel, have refused to recognize Israeli unilateral actions in East Jerusalem and the Golan Heights. They also insisted that Geneva Convention rules must apply. But the Trump administration has recklessly thrown out this important principle, denied the existence of an occupation, moved an embassy into Jerusalem, recognized the illegal Israeli annexation of the Golan Heights and was not even willing to discuss Netanyahu’s plans to  annex any parts of the West Bank.

American officials claim they are about to reveal a peace plan. This may be the case, but such a plan can hardly be advanced by this recent action. The effects of the reckless policy of President Trump will not be limited to the Middle East. Countries the world over that have an ambition to capture land they believe traditionally belongs to them will now have a strong precedent. “If the Americans and Israelis can do it,” they will say, “then so can we.”

• Jonathan Kuttab is a jurist doctor in international law from the University of Virginia, and co-founder of Al Haq Human Rights organization in Ramallah.

Twitter: @jkuttabDisclaimer: Views expressed by writers in this section are their own and do not necessarily reflect Arab News’ point-of-view