Apartheid, colonisation and occupation

In 2008, the BNC adopted the strategic position paper “United against Apartheid, Colonialism and Occupation – Dignity and Justice for the Palestinian People” which was endorsed by the global solidarity movement and debated with international legal scholars at the Israel Review Conference organized by the BNC on the margins of the UN Durban Review Conference in Geneva in April 2009. Since then, the BNC has promoted analysis of Israel’s regime over the Palestinian people as a regime which combines colonialism, apartheid and occupation for two main reasons: first, because such analysis explains in the most appropriate manner the relationship, past and present, between the dominant settler state of Israel and the oppressed indigenous Palestinian people; and second, because it constitutes the ethical and legal foundation of the BDS campaign.

In summary, this analysis shows that Israel was established by the Zionist movement over 60 years ago with the intention and effect of achieving the permanent removal en masse of the indigenous, predominantly Arab population of Palestine for the purpose of Jewish colonization and development of a “Jewish state.” This amounts to a policy of population transfer (ethnic cleansing)[1] which is defined as the “systematic, coercive and deliberate… movement of population into or out of an area … with the effect or purpose of altering the demographic composition of a territory, particularly when that ideology or policy asserts the dominance of a certain group over another.”[2] The widespread and systematic manner in which Israel has since violated international human rights and humanitarian law and defied UN resolutions, as well as the manner in which Israel has institutionalized its policy of population transfer – through discriminatory martial and civil law and administrative mechanisms – supports the conclusion that Israel’s current regime over the Palestinian people should be characterized as a system combining apartheid, occupation and colonialism.[3] Apartheid refers to a social system that separates and discriminates against people based on race or ethnicity when that system is institutionalized by laws or decrees. The Rome Statute of the International Criminal Court defines apartheid as 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”.

The backbone of Israel’s apartheid is formed by a set of discriminatory laws, including the 1950 Law of Return (1950), Absentee Property Law (1950), Citizenship Law (1952), World Zionist Organization-Jewish Agency “Status” Law (1952), the Jewish National Fund Law (1953), and Basic Law: Israel Lands (1960), which reserve the full rights of “nationals” in Israel to the state’s Jewish citizens and confers public status on Zionist “national” institutions which work for the exclusive Jewish benefit. The same laws exclude the 1948 Palestinian refugees from citizenship, confer second-class citizenship on Palestinians who have remained in Israel, facilitate confiscation of Palestinian land and its transfer to Jewish ownership, and bar Palestinian restitution claims. In the OPT since 1967, Israel has used its authority as the Occupying Power for establishing a similar apartheid regime by means of military orders. The apartheid-character of Israel’s rule in the OPT is amplified by the fact that Israeli civil law is applied to the (de facto) annexed Jewish settlers and colonies, whereas martial law is applied to the occupied Palestinian population.

This analysis provides the legal and ethical foundation for the BDS campaign, because – unlike occupation which is not illegal per se as long as it is temporary – population transfer, apartheid and colonialism are prohibited and constitute internationally wrongful acts[4] which render unlawful Israel’s entire legal and political regime over the Palestinian people. They trigger legal obligations for all states and inter-state organizations, such as the United Nations, EU and OECD. These include the obligation to abstain from recognizing or rendering aid or assistance in the commission or maintenance of such acts, and the obligation to cooperate in order to end the unlawful situation[5] and ensure effective remedies and reparations for the victims.[6] States are also required to ensure that those liable for international crimes are brought to justice. Private business corporations have a similar obligation to abstain, while civil society worldwide has a moral responsibility to ensure that states and business respect their legal obligations. People of conscience can best do so by joining the BDS campaign.

 


[1] Sources on ethnic cleansing in 1948 include: Gal Beckerman, “Top Genocide Scholars Battle Over How to Characterize Israel’s Actions” at: http://forward.com/issues/2011-02-25/ Ilan Pappe, The Ethnic Cleansing of Palestine, Oxford: One World, 2006; Nur Masalha, Expulsion of the Palestinians: The Concept of “Transfer” in Zionist Political Thought, 1882–1948, Washington DC: Institute for Palestine Studies, 1992;  Walid Khalidi, “Plan Dalet: Master Plan for the Conquest of Palestine” in Journal of Palestine Studies, (Autumn 1988). On ethnic cleansing during the 1967 war see: Tom Segev, 1967- Israel, the War, and the Year that Transformed the Middle East, Metropolitan Books, 2007.
[2] The human Rights Dimensions of Population Transfer including the Implantation of Settlers, Preliminary Report prepared by A.S. al-Khawasneh and R. Hatano. Commission on Human Rights Sub-Commission on Prevention of Discrimination and Protection of Minorities, Forty-fifth Session, 2-27 August 1993, E/CN.4/Sub.2/1993/17, 6 July 1993, paras. 15 and 17.
[3] On this conclusion see: Uri Davis, Apartheid Israel, Possibilities for the Struggle Within, Zed Books, London, 2003; Human Sciences Research Council of South Africa (HSRC): “Occupation, Colonialism, Apartheid? A Re-Assessment of Israel’s Practices in the Occupied Palestinian Territories under International Law”, Capetown, South Africa, May 2009; the reports of UN Special Rapporteurs on human rights in the OPT (John Dugard, Richard Falk), in particular: A/HRC/4/17, 29 January 2007 and A/HRC/16/72, 10 January 2011. Also: Also: Human Rights Watch, Separate and Unequal. Israel’s Discriminatory Treatment of Palestinians in the Occupied Palestinian Territories, December 2010; p. 143 – 150.
[4] Population transfer, apartheid and colonialism violate the peremptory international norms of non-discrimination and self-determination and constitute serious violations of international humanitarian and human rights customary and treaty law. Population transfer and apartheid are international crimes under the Rome Statute of the ICC (articles 7(2), 8(2)), the Geneva Convention IV (article 49) and its First Protocol Additional, article 85, paragraph 4 (c).
[5] International Law Commission, Articles on the Responsibility of States for Internationally Wrongful Acts; UNGA Resolution 56/83, 12 December 2001.
[6] Reparations include restitution (return, property restitution), compensation, rehabilitation, satisfaction, guarantees of non-repetition. See: Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law; UNGA Resolution A/Res/60/147, 21 March 2006.

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