Apartheid is a crime. How Israel treats Palestinian Arab citizens is a crime, a crime against humanity. Whether they reside in Israel or in the occupied Westbank or Gaza Strip, Palestinians are discriminated against in a variety of forms and denied equal individual rights because of their national belonging.
Apartheid is a system of institutionalized racial segregation and discrimination for the purpose of establishing and maintaining domination by one racial group of persons over another racial group of persons and systematically oppressing them, such as that pursued by South Africa before the end of its apartheid-regime. Customary international law clearly recognizes the illegitimacy of apartheid. The crime of apartheid is closely associated with the crime of genocide, and its authors and perpetrators will undoubtedly one day be called upon to account for their actions, and held liable to compensate their victims.
The International Convention on the Suppression and Punishment of the Crime of Apartheid, which came into force in July 1976 and by September 1984 had been ratified or acceded to by 79 states, states that “in the Convention on the Prevention and Punishment of the Crime of Genocide, certain acts which may also be qualified as acts of apartheid, constitute a crime under international law”. The principles behind the Apartheid Convention are now considered to be part of general customary law.
Successive Israeli governments have refused to treat the Palestinians as a national minority, however, and former Prime Minister Yitzhak Rabin once declared that: “Arabs are merely a cultural and not a national minority.” The common term used by Israelis to describe the Palestinian minority is “Israeli Arabs”, however, this is one manner of denying the existence of a Palestinian national contingent.
Israel has excluded its Palestinian citizens from Israeli public life. Moreover, the Palestinian minority has not been permitted any significant degree of control over its own affairs while the government has maintained a system of tight control. At the same time, it has obstructed the development of separate Palestinian institutions.
At the end of 1948, Palestine was faced with a land grotesquely transformed from the prewar period: hundreds of thousands of displaced persons and refugees; landscapes razed; and more than three-quarters of the 531 depopulated Palestinian towns and villages were completely destroyed.
While the large majority of the indigenous Palestinian population was eventually pushed across the borders of the created Israeli state, tens of thousands of them remained as internally displaced refugees inside the territory that became known as Israel. They were part of the some 150,000 Palestinians who had remained in Israel after the terrible events of 1948.
Today, Palestinians in Israel constitute 18% of the population of Israel: 1,057,800 out of a total population of 5,757,900. Various pieces of emergency legislation authorize the state to suspend the Palestinian Arab citizens’ civil rights. In particular since October 2000, deep divisions remain between the Jewish and Arab communities within Israel.
Apartheid is a crime against humanity and inhuman acts resulting from the policies and practices of apartheid and similar policies and practices of racial segregation and discrimination, as defined in Article II of the Convention on the Suppression and Punishment of the International Crime of Apartheid (UNGA 3068 (XXVIII) of 30 November 1973), are crimes violating the principles of international law, in particular the purposes and principles of the Charter of the United Nations, and constituting a serious threat to international peace and security. Hence, apartheid is not simply a crime against humanity but a series of acts of genocide, as far as some aspects of its practices are concerned, but also with implications for international peace and security.
A “crime of apartheid”, includes similar policies and practices of racial segregation and discrimination as formerly practiced in South Africa, and applies 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. It specifically includes, any legislative measures and other measures calculated to prevent a racial group or groups from participation in the political, social, economic and cultural life of the country and the deliberate creation of conditions preventing the full development of such a group or groups.
Moreover, a “crime of apartheid” in particular includes the denial to members of a racial group or groups basic human rights including the right to leave and to return to their country, the right to a nationality, and the right to freedom of movement and residence. It also includes any measures, including legislative measures, designed to divide the population along racial lines by the creation of separate reserves and ghettos for the members of a racial group or groups, the prohibition of mixed marriages among members of various racial groups, the expropriation of landed property belonging to a racial group or groups or to members thereof.
Although Palestinians in Israel have the right to vote, Israeli law does not allow an Arab political party to run in the Knesset election if its platform demands full and equal rights for Palestinian citizens. Although in Israel laws exist which protect the equal rights of disadvantaged groups such women and disabled, no general statute relates to the right to equality for all citizens. Moreover, there is no statute which specifically protects equal rights for the Palestinian minority in Israel. Israel’s “Basic Law” does not enumerate the right to equality. On the contrary, this Basic Law emphasizes the ethnicity of the State of Israel as a Jewish state. Therefore, the Palestinian minority is afforded no constitutional protection against discrimination.
The United Nations Committee on Economic, Social and Cultural Rights showed concern that “although [Palestinian Arab citizens] comprise over 19 percent of the total population […] This discriminatory attitude is apparent in the lower standard of living of Israeli Arabs as a result, inter alia, of lack of access to housing, water, electricity and health care and their lower level of education”.
The discriminatory treatment of these Palestinians during the recent crisis has dramatized the pervasiveness of this breach. It is evident that such a pattern is not random, or subject to remedy. This discrimination is institutionalized and enshrined in law.
It is not Israeli citizenship that confers equal rights to all its subjects, but the higher-caste “Jewish nationality” status that carries with it the guarantee of all rights to Israelis, as well as others outside the country, who are deemed eligible, even though they have never inhabited or even visited the country. This “Jewish nationality” status is the linchpin of the system of discrimination.
It should be noted that “Jewish nationality” rights include the right of “return” for new immigrants and settlers under a Basic Law: Law of Return (1948). Israel’s “Law of Return” declared that every Jew had the right to immigrate to Israel and to automatically become a citizen. Only those who qualify as Jews can take advantage of the Law of Return. Palestinians, therefore, who are not Jews, cannot take advantage of the consequences of the Law of Return. Palestinian Arabs possess “Arab nationality” in Israel but cannot, of course, posses “Jewish nationality”. Since Israel is a Jewish state, Jewish nationals are able to accrue special rights which non-Jews cannot do. Palestinian Arabs have no place in a “Jewish” state.
The effect of this law discriminates between the citizens and residents of Israel based on national origin. In this case, there is no chance for a non-Jew to acquire citizenship. The Israeli Minister of Interior has almost absolute discretion and the policy of the Ministry clearly states “not to issue citizenship” to non-Jews.
In Israel, forced eviction of Palestinians has emerged as a growing pattern in mixed towns. Notably, Jaffa used to be the thriving port city of Palestine’s coast with 100,000 indigenous inhabitants in 1948. After Israel’s establishment, its Custodian of Absentee Property assumed the homes and properties of Jaffa’s original population, then a 1951 law provided for them to be passed to a “development authority” that, in turn, sold them to the Israel Lands Authority. This has made it impossible for original owners to restore their properties, and the Israel Lands Authority has leased them to the residents as “protected tenants,” many of them once squatters made homeless during the war.
These residents are already the subjects of institutionalized discrimination, whose neighborhoods receive less than one-fifth of the budgeted municipal services that their Jewish neighborhoods enjoy. Now, these low-income survivors of ethnic cleansing, are being evicted in a wave of speculative real-estate development that has the biased support of local Israeli judges.
Perhaps best indicative of the way in which the Palestinian minority has been marginalized and assigned second-class status within Israelis the case of the “unrecognized villages”. These are tens of mostly Arab Bedouin communities which the Israeli government wishes to relocate. Refusing to recognize their existence or legality, the Israeli government forbids these communities to build or repair homes, demolishes homes built without the requisite though unattainable permit, and provides no basic services such as electricity, water, health, and educational facilities, paved roads or other infrastructure.
The health conditions of this population are among the worst in the country, and in the Negev, for instance, only some 30 percent of Bedouin infants are fully immunized and one third of infants are hospitalized at some time in their first year of life. This lack of governmental assistance, coupled with the threat of home demolition and forced eviction, is used as a means of pressure by the Israeli government to drive the people from their homes.
Under the Law of Planning and Construction (1965) their houses can be demolished. To speed up the sedentarisation process, in 1986 the Markovitz Committee on unlicensed building, which did not consult any representative of the Negev Bedouin, recommended the demolition of 6,601 existing homes and all new buildings in the Negev. Subsequent governments have maintained this policy.
In order to put pressure on the Bedouin to leave the unrecognized villages, official policy is to deny these communities basic services and prevent them from developing infrastructure. Planning laws are used to prevent villagers from building any permanent constructions or repairing existing temporary ones. Connection to water and electricity networks is prohibited.
Apartheid is a crime against humanity. Israel has deprived millions of Palestinians of their liberty and property. It has perpetuated a system of gross racial discrimination and inequality. It has systematically incarcerated and tortured thousands of Palestinians, contrary to the rules of international law. It has, in particular, waged a war against the children of Palestine.
As early as 1966 the UN General Assembly characterized the acts of the apartheid regime as ‘war crimes’, and even the Security Council has applied the Nuremberg Principles to the South African situation (under resolution 392 of 1976 and 473 of 1980).
The Nuremberg Principles adopted by the UN General Assembly in 1946 are a set of rules which grew out of the conclusion of the International Military Tribunal held in Nuremberg after the war to try the major Nazi war criminals. That Tribunal held that there was both international and individual responsibility for the crimes that were committed during the war, which can be summed up under three heads:
(1) Crimes Against Peace, including planning, preparation, initiation or waging of a war of aggression or a war in violation of international treaties, agreements or assurances, or participation in a common plan or conspiracy of any of the foregoing;
(2) War Crimes, namely, violation of the laws or customs of war; and
(3) Crimes Against Humanity, including murder, extermination, enslavement, deportation and other inhumane acts committed against any civilian population before or during the war or persecutions on political, racial or religious grounds in execution of or in connection with any crime within the jurisdiction of the Tribunal, whether or not in violation of the international community as a whole, with the result that a state may breach international law without necessarily having infringed the rights or integrity of another state.
In applying the Nuremberg Principles to Israel, and deciding whether or not the apartheid regime has committed a crime against peace, the first necessity is to determine whether or not aggression is involved. Various United Nations organs have recognized and condemned the gravity of Israeli human rights violations during the crisis that erupted on September 28, 2000.
The UN Security Council has condemned Israel’s use of “excessive force” against the Palestinian population, including the indiscriminate use of automatic weapons, exploding bullets, helicopter gun-ships, tanks, rockets and the bombing of civilian neighborhoods and refugee camps.
Security Council Resolution 1322 called “upon Israel, the occupying Power, to abide scrupulously by its legal obligations and its responsibilities under the Fourth Geneva Convention relative to the Protection of Civilian Persons in Time of War of 12 August 1949”. The Human Rights Commission, meeting in an emergency session, condemned “the disproportionate and indiscriminate use of force in violation of international humanitarian law by the Israeli occupying Power against innocent and unarmed Palestinian civilians” (E/CN.4/S-5/L.2/Rev.1).
The Israeli human rights organization B’Tselem concluded “Most of those killed or injured were unarmed. These casualties were a direct result of Israel’s policy on dispersing demonstrations by unarmed Palestinians. Israel used excessive force in dispersing these demonstrations. The force employed was disproportionate to the danger faced by soldiers and in violation of the Open-Fire Regulations.”
On 19 October 2000 Amnesty International issued a report entitled “Israel and the Occupied Territories: Excessive use of lethal force” (MDE 15/41/00) which examined killings of Palestinians caused by the excessive use of force by Israeli security forces. “In policing the recent demonstrations, the Israeli security forces tended to use military methods rather than policing methods involving the protection of human lives,” Amnesty International said.
Recently, the US State Department stated that “In many instances, Israeli security forces used excessive force against demonstrators in contravention of their official rules of engagement.”
Since 1948 the UN General Assembly has passed numerous resolutions condemning acts of aggression by Israel against the Palestinian people. So has the Security Council, without invoking Chapter VII of the Chapter.
There is authoritative support, both from international legal opinion and in many conventions, declarations and resolution of the United Nations, for the view that in spite of the failure of he UN Security Council to make a positive determination under Chapter VII of the Charter on the issue, the whole nature of the apartheid regime and its actions must be held to be aggressive and illegal. Undoubtedly too, Israel’s authorities are guilty of crimes against humanity, as described above.
The association between the crimes of apartheid and of genocide has been further confirmed by the 1985 report of the Ad Hoc Working Group of Experts appointed by the UN Commission on Human Rights, which points out that genocide is not merely the act of murder applied on a mass scale to a national or ethnic group, but also covers acts “calculated to destroy the individual or prevent him from participating fully in national life”.
Various consequences flow from such a conclusion. Notably, those who are responsible for the planning and implementation of apartheid can be held liable for their crimes, without any limitation on the time for putting them on trial. Also, the victims of apartheid are entitled to reparation. These consequences are spelled out in the UN Convention on the Non-Applicability of Statutory Limitations War Crimes and Crimes Against Humanity, 1968. Its provisions, it states, apply to:
“representative of state authority and private individuals who, as principals or accomplices, participate in and who directly incite others to the commission of any of those crimes (against humanity) or who conspire to commit them, irrespective of the degree of completion, and to representatives of the state authority who tolerate their commission”. The convention also lays down in Article 1 that no statutory limitation shall apply to certain crimes, and specially assimilates “inhuman acts resulting from the policy of apartheid” to “crimes against humanity”.
The right to reparations for wrongful acts has long been recognized as a fundamental principle of law essential to the functioning of legal systems. In 1961, Justice Guha Roy of India wrote: “That a wrong done to an individual must be redressed by the offender himself or by someone else against whom the sanction of the community may be directed is one of those timeless axioms of justice without which social life is unthinkable.”
The obligation to provide reparations for human right abuses, especially gross violations of human rights, has more recently been recognized under international treaty and customary law, decisions of international bodies such as the United Nations Human Rights Committee and Inter-American Court of Human Rights, national law and practices and municipal courts and tribunals.
World history contains countless records of atrocities committed by humans against humans. Examples this century include the holocaust of World War II, repression and torture under Pinochet’s Chile, Argentina’s “dirty war”, forced removal of Aboriginal children from their families in Australia, widespread and systematic persecution under the South African apartheid regime, and the continual and systematic displacement, expulsion, and dispossession of the Palestinian people.
The response by the Australian government involved a National Inquiry, while the South African government established a Truth and Reconciliation Commission. These mechanisms operated within the international law of reparations framework for victims of human rights abuses. In accordance with this law, reparation includes all types of redress – restitution, compensation, rehabilitation and, satisfaction and guarantees of non-repetition and consists of material and non-material redress.
The responses made by Australia and South Africa to human rights abuses emanating from the removal policies and apartheid policies respectively, shed light on what Israeli society must necessarily go through before one can speak of a just and lasting peace in the Middle East.