Posted November 16, 2011 at 1:40 pm

Why the law against Apartheid is stronger stuff than Occupation Law

Six explorations
around International
Law, plus the
gate-crashing of
Birthright Israel’s
Reunion party

1. “A single integrated regime”

“The Russell Tribunal on Palestine concludes that Israel’s rule over the Palestinian people, wherever they reside, collectively amounts to a single integrated regime of apartheid.”

Norman Finkelstein, brilliant, outspoken and fearless anti-Zionist, is accustomed to being heckled by the right, and was quite shaken by a London audience* that challenged his case for limiting the scope of the struggle.

He argued that the boycott movement should stick with those goals that were supported with clear international law and that anything else, especially any question of Israel’s fundamental validity, would lose support and reduce the BDS (boycott) movement to a sect or even a “clique”.

But he was distinctly selective in the international law he cited, omitting the International law directive against apartheid. Speaker after speaker was applauded when they insisted that the clear aims of BDS do indeed include an end to Israel’s systemic racial discimination.

Finkelstein put forward an apparently law-based case for focusing entirely on the Occupation, the wall and the settlers. This was firmly corrected by Frank Barat, coordinator of the Russell Tribunal, who read out its very recent findings that it was all one country.

The Tribunal findings had also confirmed that “The state of Israel is legally obliged to respect the prohibition of apartheid contained in international law.”

*A conversation organised in London by BRICUP and Jews for Boycotting Israeli Goods during Finkelstein’s British tour, whose packed main events were attended by thousands of supporters.

2. Israel found guilty on all counts

From the Russell Tribunal jury findings

The Russell Tribunal, which held three major sessions to hear submissions from eminent jurists and highly respected academics, reiterates that “The legal definition of apartheid applies to any situation … where the following three core elements exist: (i) that two distinct racial groups can be identified; (ii) that ‘inhumane acts’ are committed against the subordinate group; and (iii) that such acts are committed systematically in the context of an institutionalised regime of domination by one group over the other.”

The Tribunal found “(i) the legal definition of ‘racial group’ applies to all circumstances in which the Israeli authorities have jurisdiction over Palestinians. … (ii) a catalogue of inhumane acts stretching back to 1948 whose “end result is wholesale territorial fragmentation and a series of separate reserves and enclaves, with the two groups largely segregated.” And it notes that Israel has its own word for this, not apartheid but Hafrada, Hebrew for separation.

iii) These acts are widespread, integrated and systemic, rooted in law, public policy and formal institutions, with preferential status for Jews over non-Jews in most spheres of public life, backed up by powerful quasi-state international Jewish institutions (such as the Jewish National Fund) which make no claim to fairness. In the West Bank there are two entirely separate legal systems.

And the Tribunal also noted that this is not just a system of stable and passive discrimination but consisted of active, punitive, vindictive, purposeful and relentless persecution.

From the findings of the third session, Cape Town 5-6 Nov 2011

3. Forget the boundaries: it’s the Jewish Demographic State

From Ran Greenstein’s submission to the Tribunal

Apartheid is a system of racial domination; oppression on ethnic or national grounds can be defined as racial domination as well. The relevant groups in Israel/Palestine are Israeli Jews and Palestinian Arabs. These groups are not racial in nature but rather based on ethnicity (meaning, a sense of common origins and culture), national identity and religion. For our purposes here, the crucial point is whether the state uses group membership in order to allocate civil, social and political rights in a differentiated manner.

In Israel/Palestine, group membership is an official category imposed and monitored by the state, not simply a voluntary identity. It is very difficult to move from one group into the other. Although theoretically possible, it is extremely rare in practice. To be defined as Jewish has nothing to do with religious observance. Rather it means to be recognised by the state as a member of the Jewish community. This membership is codified in population registration data, kept by the Ministry of the Interior. It carries with it certain rights and obligations, having to do with immigration and residence rights, as well as access to land and military service (which in turn carries with it certain rights and obligations).

While Israeli Jews are a group unified by law, sharing the same legal status wherever they reside, Palestinian Arabs are divided by their legal status into citizens; occupied residents (whose residence rights may be lost if they leave the territory in which they live); and the 1948 refugees who do not have the right to return to any part of historical Palestine. No such restrictions apply to Jews: in fact, those who are not citizens already can acquire Israeli citizenship automatically by relocating to the country.

Thus, Israeli citizenship is open to all non-resident members of the dominant Jewish group, wherever they are and regardless of their personal history and actual links to the territory. It is closed off to all non-resident members of the subordinate Palestinian group, wherever they are and regardless of their personal history and actual links to the territory.

Israel as a state is based on the permanent blurring of physical boundaries. At no point in its 63 years of existence have its boundaries been fixed by law, nor are they likely to become fixed in the foreseeable future. Its boundaries are permanently temporary, as evidenced by continued talk of the 1967 occupation as temporary. At the same time, its boundaries are asymmetrical: porous in one direction (expansion of military forces and settlers into neighbouring territories), and impermeable in another direction (severe restrictions or total prohibition on entry of Palestinians – from the occupied territories and the Diaspora – into its pre-1967 territories).

The Israeli regime combines different modes of rule: civilian authority with all the institutions of a formal democracy within the Green Line; and military authority without democratic pretensions beyond the Line. In times of crisis, the military mode of rule tends to spill over into the Green Line to apply to Palestinian citizens. At all times, the civilian mode of rule spills over beyond the Green Line to apply to Jews residing there. The distinction between the two sides of the Green Line is constantly eroding as a result, and norms and practices developed under the occupation filter back into Israel.

Israel in fact is a ‘Jewish demographic state’. Demography – the fear that Jews may become a minority – is the prime concern behind the policies of all mainstream forces. All state structures, policies and proposed solutions to the Israeli-Palestinian conflict are geared, in consequence, to meet the concern for a permanent Jewish majority exercising political domination in the State of Israel (in whichever boundaries).

Its quest is for demographic majority as the basis for legal, military and political domination. But the geographically expansionist drive of the Zionist project has come into clash with the demographic imperative to ensure a Jewish majority. It is clear that the status quo is becoming increasingly unstable and is not going to last long.

Palestinian citizens are positioned between Jewish citizens and Palestinian non-citizens. They are the only segment of the population of Greater Israel/Palestine that is fully bilingual, familiar with all political and cultural realities, with enough freedom to organize but not enough rights to align themselves with the oppressive status quo. As a minority group they cannot drive change on their own but may act as crucial catalysts for change. They have a strategic vantage point from which to play a key role in the struggle to transform the system.

Ran Greenstein is an Associate Professor in the Department of Sociology at the University of the Witwatersrand Johannesburg, South Africa. He has written extensively on the genealogies of the conflicts in Palestine/Israel and South Africa. About half this submission compared Israel and South Africa. It has been shortened and edited. Read the whole of it here.

4. One space carefully controlled and engineered

From Udi Aloni’s reply to Richard Goldstone’s assertion that Israel was not an apartheid regime.

The fact is that there is today a single political and geographic space between the Jordan River and the Mediterranean Sea. The whole area has been under Israeli sovereignty and control for the past 44 years. The skies, seas, borders, water rights, the judicial system as well as military and civic government are all controlled by Israel. Palestinians have municipal rule; not sovereignty. It’s a racist strategy of continued Jewish-Israeli control by means of violent maintenance of a demographic majority and the breaking of the Arab-Palestinian nation into pieces. There are 6 million Jews and almost as many Palestinians living today in this space. While the Jews live as one people tightly linked to world Jewry, and any Jew can become an Israeli citizen at any time, the Palestinians are broken into five separate pieces that cannot function as a people: There are approximately 1.5 million Palestinians in Gaza, 1.5 million Palestinians holding Israeli citizenship, 2.5 million Palestinians in the West Bank, 300,000 residents of Jerusalem, and finally the Palestinian Diaspora scattered throughout the world that Israel does not allow to return.

… Israel attempts to maintain a semblance of equality under the law for Jews and Palestinians inside the Green Line, but all the zoning plans and investments in infrastructure discriminate unequivocally against the Palestinian Israeli population and thus reveal an administrative apartheid that’s quite distinct from the legal apartheid reserved for Palestinians in the territories. For example, in the mixed city of Lydda there are 700 houses marked for demolition, all of them but one belong to Arab citizens of Israel. llegal Jewish houses, however, received retroactive approval.

Israeli law separates Palestinians into fictitious sub-categories. By annexing eastern Jerusalem, Israel applies Israeli law on the physical territory but not on its Palestinian inhabitants, thus creating a new class of “citizens” lacking the right to vote. Even departing their house for a certain period of time can serve as the basis for the state to revoke their already crippled citizenship status and their right to live in Jerusalem. These examples show that a clear policy exists to maintain a Jewish majority, a policy whose execution involves the systematic abuse of fundamental civil rights.

Udi Aloni is the son of prominent liberal Zionist political figure Shulamit Aloni.

http://www.salon.com/2011/11/09/goldstones_offensive_apartheid_apology/

5. How relevant is international law on Occupation?

The much cited international law on occupation forbids the occupying force to move its own citizens into the occupied territory. It thus assumes the occupation is temporary, and at the same time attempts to ensure that it remains temporary. But just how long is “temporary”?

Since 1967, the international community has watched as Israel coolly ignored this law in its occupation of the West Bank and Gaza Strip, blatantly laying down facts on the ground to make the occupation permanent, but getting away with it because it was assumed to be temporary and changeable in the fetishized negotiations. Darryl Li set out to ” re-examine the assumptions behind the consensus position of the international community upon which Palestinians and their allies have relied.”

Israel in fact claims this law does not apply as they never occupied “Palestine” because at the time of their invasion of June 1967 the West Bank was part of Jordan. So they say it’s “disputed”.

Nobody is convinced by this pseudo-legal evasion: it ignores the fact (a) that it was Israel that in 1948 told Jordan it could have the West Bank, being not yet strong enough to capture it then; (b) that in all its history except for the 19 years prior to 1967 the West Bank and Gaza had been part of Palestine; and (c) that no negotiations have taken place with Jordan to resolve the so-called dispute.

But Israel always has things both ways. Having run rings around international occupation law by colonising their military gains, they then turn around and make full use of the law, which forbids the unilateral annexation of occupied land. This lets Israel out of any pressure to grant citizenship and civil rights to the people.

With the Green Line border, Israel has it both ways again. It denies that it was a valid international boundary (so it can build beyond it), but also uses the “otherness” of the lands beyond to re-affirm by contrast its gains of 1948 as being “Israel proper”, and establish deep in the international psyche that the violent partition of Palestine was a natural occurance, and so too would be its re-partition into a separate entity. This Li calls “Partitioning the Imagination”.

And he goes on: “One reason why occupation law enjoys widespread appeal – why it can provide a shared language that Palestinian nationalists, liberal Zionists, and the “international community” alike can employ – is because its implementation would be consistent with the so-called “two-state solution” to the conflict. Indeed, in light of occupation law’s ban on colonization, one can argue that its implementation is crucial for ensuring the viability of any Palestinian state in the West Bank and Gaza Strip.

“Occupation law’s assumptions of otherness, premised on a simple dichotomy between occupied territory and occupying states, are not particularly helpful in grasping a basic fact: since the 1967 War, the territory of the British Mandate of Palestine has been ruled by a single supreme authority. The green line has defined the state of Israel for less than one-third of its liftetime (1948-1967). Meanwhile, it has constructed a complex set of political, legal, economic, and social relationships that have essentially dissolved the West Bank as a coherent entity and converted the Gaza Strip into a large-scale holding pen for a quarter of the country’s indigenous population.

… “While the law of occupation does not require partition as a political solution, it does contribute to a partitioned understanding and analysis of this regime. Occupation law’s assumption of the otherness of the occupied territory encourages us to treat pre-1967 Israel as a given while limiting attention to settlements and various repressive practices only as so many different “violations.” Even when such violations are treated as systematic, they are detached from the larger context. They focus solely on the twenty-two percent of the country comprised of the West Bank and Gaza Strip, leaving parallel situations inside the green line to be analyzed separately as “domestic” problems under international human rights law.

… “Annexing the territories and their populations would destroy this illusion. Thus, occupation law, with its concomitant strictures against annexation, is a useful legal placeholder once divested of any real ability to constrain colonization. . .. Occupation law may make many demands on a state to respect certain basic rights of civilians. But the one thing that it does not demand – and that it never could demand – is the extension of equal citizenship to occupied populations. … Israel is not legally required to confer citizenship to occupied populations in the first place, or provide them with any political status whatsoever. “

Israel’s disengagement from Gaza is simply further illustration of its ability to re-invent the law and get away with it, creating “political cover for portraying its new relationship with the Gaza Strip as one of parity. … Israel reclassified the Gaza Strip from something like an occupied territory to a “hostile territory” with an even lower level of legal restraint. This helped legitimize a massive escalation of repression, including the tightening of the siege and the 2008-2009 onslaught.”

This should be a dire warning of what “two states side by side” would look like. Li concludes that “serious questions remain as to whether occupation law … is an appropriate tool for facing the challenge of contemporary settler colonialism” and that ” as partition recedes as a viable option, the evolving situation on the ground raises difficult legal questions that require sustained consideration.”

Based on Darryl Li’s “Occupation Law and the One-State Reality”, 2 Aug 2011
http://www.jadaliyya.com/pages/index/2295/occupation-law-and-th ate-reality e-one-st

6. Should they call time on “temporary” Occupation Law?

In a useful comment on Darryl Li’s challenge, “Walad” asks: “Is there no law or doctrine that states that, if a state has such a totalizing relationship to a defined set of people/territory for such an extended period, then those people exist in a de facto state of citizenship vis-a-vis the state? Can a state legitimately (and indefinitely) be both totalizing and exclusionary regarding a defined population/territory? Should it not follow that a state in a totalizing relationship to a defined population is in fact the home state of such a population. ” …

Thus if the legal status of the territories were harmonised with their de facto situation, it would be found that Israel has in actuality annexed them into a Greater Israel. Palestinians in the West Bank and Gaza would be found to have been living on Israeli territory but without nationality rights. Israel would then have to be isolated internationally until it afforded full citizenship to all the people over whom it has control, and thus maybe restoring the 1947 status quo of One Palestine.

Is it time to amend the Geneva, Hague and UN Regulations and Conventions relating to Occupation so that an occupation is not merely implicitly temporary but explicitly limited to a set period, after which its people either have full rights or full freedom and sovereignty, and if not, that the occupying power is subject to penalties?