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Prospects for ending Israel’s impunity for apartheid and other crimes

Written by  Jeff Handmaker
Palmach Troups gathering Palestinians from al-Ramel to be ready for displacement, 6 july 1948. (©Ariella Azoulay) Palmach Troups gathering Palestinians from al-Ramel to be ready for displacement, 6 july 1948. (©Ariella Azoulay)

            Philanthropic colonization is a failure. National colonization will succeed.

-          Theodor Herzl (1897), First Congress Address, Delivered in Basel, Switzerland.

            It is very possible that the Arabs of the neighbouring countries will come to their aid against         us. But our strength will exceed theirs. Not only because we will be better organized and         equipped, but because behind us there stands a still larger force, superior in quality and        quantity … the whole younger generation [from Europe and America].

-          David Ben Gurion, quoted in N. Masalha (1992) Expulsion Of The Palestinians, p. 66.

            Apartheid—both petty and grand—is obviously evil. Nothing can justify the arrogant        assumption that a clique of foreigners has the right to decide on the lives of a majority.

-          Steven Biko (1978) I Write What I Like.

The racist ideals that were thought up by Herzl and other Zionists in the late 19th Century, and which framed the thinking of Ben Gurion and other Zionist leaders during the creation of the State of Israel, became the basis of Israel’s apartheid regime, which continues to the present day. In view of Israel’s arrogant impunity in implementing whatever racist or violent policy it chooses, with little to no consequences, it is easy to despair.

However, as South African anti-apartheid leader Steven Biko so eloquently noted in 1970s, when people also felt despair at the impunity of the apartheid regime’s white leaders, no amount of arrogance can serve as a legitimate cover for the international crime of apartheid.

This short article reviews Israel’s decades-long policies of racist dispossession, colonisation and apartheid, followed by a brief review of how states and international organisations ought to respond, and how civic organisations are responding, through a Palestinian-led campaign of Boycott, Divestment and Sanctions.1

More than 60 years of dispossession, colonisation and apartheid

There is no shortage of analyses about the causes and consequences of more than 60 years of dispossession by Israel of Palestinian residency rights.2 The dispossession of Palestinians has been reinforced by a more than 40-year long, belligerent occupation of the West Bank, East Jerusalem, Gaza Strip and the Golan and Israel’s relentless construction of settlements, which ought more appropriately to be referred to as ‘colonies’. Palestinians have been forced into ever - diminishing patches of land that, since the League of Nations mandate, states and international organisations have disingenuously argued should form an autonomous Palestinian state.

Perhaps the most insidious aspect of Israel’s continuous efforts to oppress Palestinians is the Israeli military’s construction of a wall in 2002, accompanied by what the International Court of Justice has termed the “associated regime”. In an effort to reinforce bogus claims that view the West Bank, Gaza Strip and much of East Jerusalem as sovereign territories of Israel, Israel’s Wall has snaked its way around massive, illegally-constructed colonies, protecting these and Jewish colonist-only roads and has encircled much of the Gaza strip. In the West Bank and East Jerusalem, the wall encroaches deep within the green line, and has caused a further wave of forced displacement. The Wall cuts off Palestinians from their lands, jobs, schools, universities and businesses and is for many the most obvious manifestation of a situation that the Russell Tribunal on Palestine, in its Cape Town sessions, concluded was a regime of apartheid.3

Cementing apartheid through denationalisation

Since the initial expulsion of Palestinians, followed by the unilateral creation of the Jewish state in 1948, and the prevention by Zionist militias of refugees to return to their homes and livelihoods, the Israeli legal system has progressively sought to affirm its apartheid regime by denationalising Palestinians and stripping them of their rights. The concept of Israeli nationality does not exist in Israeli law.4 Israel’s legal system only recognises Jewish nationality, restricting and/or excluding non-Jews from numerous services, rights and privileges.5

Israel is possibly the only country in the world where citizenship and nationality are two entirely separate concepts. Palestinians who became citizens of Israel in 1948, therefore, do not enjoy any legally protected nationality. Drawing on this exclusive legal distinction, the Israeli government has maintained, with impunity, its apartheid regime, not only in its colonies in the occupied Palestinian territories, but also in Israel itself.

From state reprisals to civic boycotts

Ending Israel’s impunity for countless human rights violations conducted in the context of its apartheid regime has proven to be no easy matter. This, despite the fact that states and international organisations (notably the United Nations and the European Union) have a sound legal justification for holding Israel accountable for its violations of international law (not least the UN Charter of 1945 and the Apartheid Convention of 1973). Based on these and other legal instruments, states and international organisations have an extensive range of options available to them to hold Israel accountable, from public denunciations to punitive reprisals (e.g. sanctions).6 Despite numerous Security Council Resolutions and damning reports from UN Experts, Palestinian, Israeli and international organisations, States, the UN and the EU have been stubbornly reluctant to hold Israel accountable, despite a 2004 Ruling by the International Court of Justice that not only exposed Israel’s violations, but compelled other states and international organisations to take action against Israel’s impunity.7

The blatant disregard by Israel for international law and the countless atrocities it has committed has, in other words, been matched by a silence on the part of most countries, including the powerful members of the Security Council. Israel’s impunity has not only been permitted, but consciously allowed due to the cowardice and/or outright complicity of states that have persistently refused to hold Israel accountable for its violations of Palestinian rights. This situation has revealed serious weaknesses within the United Nations system. However, contrary perhaps to the expectations of Israel’s oppressive apartheid regime, the failure of Israel and the so-called international community of states, the United Nations and the European Union to respect international law has led to a strengthening of resolve by the Palestinian people, most notably in the astoundingly successful, Palestinian-led, global campaign of Boycott, Divestment and Sanctions, as documented by Omar Barghouti.8

Palestinian Civil Society-Led BDS Campaign

Civic led boycotts and divestment are supported by both legal and moral underpinnings. Whether or not legal options are exhausted, civic advocates can always draw on moral imperatives and insist upon state accountability. As explained by veteran human rights advocate Adri Nieuwhof, authoritarian regimes, such as the state of Israel, can be held accountable through a combination of four inter-linking strategies. These comprise: (1) a well-argued communication of the legal and moral justifications for advocating a state’s accountability, (2) political pressure and (3) economic isolation through boycotts, divestments and sanctions. Finally (4), Nieuwhof argues that it is crucial to provide support to civic structures that are mobilised in the country where violations are taking place.9

As Badil, Al-Haq, Palestinian Centre for Human Rights and others have demonstrated, constructing a rights discourse that articulates the legal and moral justifications for BDS requires a strategic approach, bearing in mind the potential and challenges of legal avenues for claiming those rights, as well as the interests of various stakeholders, which are often overlapping. Such an approach unites Palestinians with their global solidarity partners and potentially engages Palestinian political leadership, Israeli society and eventually states and international organisations to take action.

Some conclusions and propositions

Despite the fact that the United Nations has proven to be unable to act in a strong and principled way, it would still be prudent to insist that the UN take up its global responsibilities to end Israel’s colonial regime. After all, the UN was not only established to prevent the reoccurrence of war and to resolve conflicts, but to eradicate colonisation once and for all, on the basis of international law.

Numerous efforts to resolve the impasse between Israel and the Palestinians and find peace on the basis of ‘discovering the common ground’ have failed miserably, and with bloody consequences. They have failed, not only because of their failure to recognise massive legal, social and economic inequalities, but because of a highly unprincipled approach on the part of those seeking to ‘bring peace’ to the region. The approach outlined by the Quartet – and led especially by the United States – regards three major issues, perceived as presenting ‘obstacles’ to any peace settlement, namely the status of Jerusalem, the fate of the settlements/colonies and the plight of Palestinian refugees. The members of the so-called quartet have relegated these key issues to the back burner, treating them as so-called ‘final status’ issues in the hope that at some stage, an interim peace settlement can be found. What can be called an approach of appeasement not only failed to work, but has legitimated Israel’s atrocities, on-going annexation and occupation, which has been paid for by the members of the Quartet.

An alternative approach to appeasement, strongly advocated by Professor Dugard, which so far the UN has not applied to any significant degree, would be based on international law and human rights. Rather than being hampered by massive inequalities, the UN would be directly engaged in redressing those inequalities and ensuring that civilians, including Palestinian refugees, were directly engaged in finding a solution to the impasse between Israel and the Palestinians.

While imperfect and wholly dependent on political will, an approach rooted in international law offers a highly desirable alternative to stagnated diplomacy and a seemingly endless cycle of violence. It reaffirms that human rights are inextricably linked to peace; in other words, respect for international law (and human rights) is a pre-requisite to a peaceful outcome. Furthermore, such an approach expands the possibilities of alternative solutions to the possibly defunct prospects of a two-state solution.

In light of this analysis, I offer the following propositions.

The first proposition is thatinternational law (and by extension human rights) serves as the most credible basis for ending impunity and restoring equitable legal protection. This proposition recognises that the legal status of Israelis as well as Palestinians should be based on the principle of normative equality. It urges that mechanisms be put in place, both to claim that status, in order to achieve actual equality, and to resolve conflicting rights that will inevitably arise.10 It assumes that an increased respect for human rights will increase the prospects for peace.

The second proposition is that recognising theright of Palestinians to return to their homes and livelihoods is an essential pre-requisite to any peace settlement. This will, of course, require considerable compromises by Israel, which are the highly unfortunate consequences of Israel’s construction of ‘facts on the ground’, notably the decades-long illegal construction of colonies on occupied Palestinian territory. However, as the Israeli organisation Zochrot has declared, recognising the right would ‘enable a space where the Nakba can be spoken of or written about’ both in Arabic as well as Hebrew, in other words, re-framing the debate.11

The third proposition is thatall Palestinians, including prisoners and refugees, wherever they may be, must be provided a role to participate in political negotiations. The reasoning here is that refugees are seen not as part of the problem, but as part of the solution. As Valerie Hunt has argued, the ‘moral perspective of deservedness plays a large role in how we understand the assignment of rights to different groups within society’.12 It furthermore allows one ‘to make positive connections’ between one and the other’s national identities.13

The fourth and final proposition is that alternative models for resolving the decades-long impasse, including the option of one, secular democratic state are deserving of serious consideration.14 A change of facts on the ground has created permanent structures in Israel’s West Bank colonies, and arguably rendered a two-state solution socially and economically impossible. As Abunimah, Barghouti and others have argued, Israel has in fact already created one state, separated into various cantons, all of which are under the effective control of the Israeli government and military. All borders are controlled by the Israeli military and border police. In Israel, there is growing recognition of the treatment of Palestinian citizens of Israel as second-class citizens, including the especially appalling treatment of Bedouins inside Israel and throughout the occupied Palestinian territory.

Despite the political rhetoric and apparent momentum in favour of a two-state solution, it is abundantly clear that such a solution would not resolve the refugee issue, without doubt the most enduring obstacle to a just peace in the 60-year long impasse between Israel and the Palestinians.

Following the devastation of Gaza at the beginning of 2009, caused by Israel’s illegal aggression, and the continued closure of the West Bank and unstoppable growth of illegal colonies, the prospects of resolving the impasse between Israel and the Palestinians seems further than ever. No resolution of this impasse will be possible in the absence of an even-handed approach, for which international law can provide, but which the UN and third states have – until now – refused to apply with any degree of consistency, or consequence for Israel.

Until the situation changes, a global, civic-led campaign of boycott, divestment and sanctions offers a non-violent alternative to the horrifying cycle of violence in Israel-Palestine.15 Rooted in international law principles, this campaign also offers good prospects for promoting justice and peace to all who are victims of the ongoing impasse between Israeli Zionist ideology and Palestinian national aspirations. Tried and tested – quite successfully – in South Africa, BDS offers tremendous hope and inspiration to those who dream of an end to Israel’s apartheid regime.

 

* The author is a senior lecturer in law, human rights and development, International Institute of Social Studies of Erasmus University Rotterdam.

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[1]This article draws substantially from J. Handmaker (2011) ‘Beyond Exclusion: Assessing Palestinian refugees' struggle for protection and recognition and their potential contribution to a peace settlement’ in K. van der Borght, K. Byttebier & C. Mackenzie (Eds.), Imagining a Shared Future: Perspectives on Law, Conflict and Economic Development in the Middle East, London: Cameron May, 199-224.

[2]See, for example: L. Takkenberg (1998), The Status of Palestinian Refugees in International Law, Oxford: Clarendon Press; I. Pappe (2006), The Ethnic Cleansing of Palestine, London: One World; S. Dajani (2005), "Ruling Palestine, A History of the Legally Sanctioned Jewish-Israeli Seizure of Land and Housing in Palestine", Geneva and Bethlehem: COHRE and BADIL.

[3]Russell Tribunal on Palestine (2011), Findings of the South African Session, Cape Town, 5-7 November 2011, Last checked on 9/1/12 at: http://www.russelltribunalonpalestine.com/en/wp-content/uploads/2011/09/RToP-Cape-Town-full-findings2.pdf

[4]J. Shechla (2010), ‘The Consequences of Conflating Religion, Race, Nationality and Citizenship’, Al-Majdal, Badil: Bethelehem, Issue 43, 10-16.

[5]M. Zeidan (2008), ‘Citizenship without Nationality: The Case of the Palestinian Arab Minority in Israel’, Conference paper presented on his behalf by Masri, M. at the Law and Society Association Meeting 2008, Montreal, Canada, 29 May – 1 June.

[6]J. Handmaker (2007), ‘Responsibility to protect Palestinian refugees when international authorities fail’, Al-Majdal, Badil: Bethlehem, Issue 35, 36-42.

[7]International Court of Justice (2004), Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, including in and around East Jerusalem, Advisory Opinion, delivered in The Hague on 9 July 2004.

[8]O. Barghouti , Boycott, Divestment, Sanctions: The Global Struggle for Palestinian Rights. Chicago: Haymarket.2011

[9]J. Handmaker (2005), ‘Civil society and international law: protecting and promoting human rights in the light of the July 2004 advisory opinion of the International Court of Justice’, in United Nations International Meeting on the Question of Palestine. Implementing the advisory opinion of the International Court of Justice on the legal consequences of the construction of a wall in the Occupied Palestinian Territory - the role of Governments, intergovernmental organizations and civil society, United Nations Office at Geneva, 8 and 9 March 2005, New York: United Nations, at 79-81.

[10]M. Kagan, ‘Do Israeli Rights Conflict With the Palestinian Right of Return? Identifying the Possible Legal Arguments’, Working Paper 10, Badil, August 2005.

[11]N. Musih (2009), ‘Learning the Nakba as a condition for peace and reconciliation’, Position Paper, Zochrot: Tel Aviv, no date). Last checked on 21.1.09 at: http://www.zochrot.org/index.php?id=642

[12]V. Hunt (2005), ‘The Questionable Place of Rights in U.S. Immigration Policy After September 11: Past Policy and Present Public Attitudes’, presented at the 2005 Law and Society Association Annual Meeting, Las Vegas, USA at 27.

[13]Ibid, 16.

[14]For more on this topic, see http://www.yorku.ca/ipconf (Last checked on 9 January 2012).

[15]For more information on the movement, see http://www.bdsmovement.net (Last checked on 18.2.11).

Jeff Handmaker

Jeff Handmaker

Jeff Handmaker teaches human rights, development and social justice and conducts research at the International Institute of Social Studies (ISS) of Erasmus University in The Netherlands. He is a member of the Editorial Committee of Al-Majdal and of Badil’s Legal Support Network.