These are dark days for those suffering the loss of country and means of subsistence, displacement, the denial of self-determination and other human rights that accompany the breakdown of peace and security. These days are gravely disappointing also for those seeking a UN Security Council (SC) that fulfills its UN Charter-based mandate to bear the “primary responsibility for the maintenance of international peace and security.” In light of the current conflict in Syria, for example, any evaluation of the SC’s performance would not be favorable. Even UN Secretary General Ban Ki-moon has admitted that the SC is failing because of great power divisions that have prevented effective action to end the loss of hundreds of thousands of lives and driven the biggest refugee exodus in generations.
The practices of population transfer, including the implantation of settlers and settlements with the effect or purpose of demographic manipulation, qualify as war crimes and crimes against humanity in modern international law.Two centuries of legal prohibitions and eventual criminalization of population transfer have developed along two converging tracks. The first derives from the rights and sovereign claims of states vis-à-vis other states, establishing the unacceptability of the acquisition of territory by military force or other means. The belated second doctrine derives from states’ obligations to respect, protection and fulfillment of human rights, including during times of conflict, occupation and war. Population transfer violates the full range of individual rights, as well as collective rights, among which is the inalienable right to self-determination. Human Rights and International Humanitarian Law (IHL) theoretically protect these values, particularly for the most-likely subjects of population transfer: civilians in wartime, people under occupation and indigenous peoples.
The cruelty of population transfer is as old as the earliest civilizations. Such felonious practices are supposed to be vestiges of an uncivilized and ignoble past. With the development of international law in the twentieth century, population transfer is now punishable as both a war crime and crime against humanity. However, firm and enforceable prohibitions have been long in coming and inconsistently upheld.
Much has been written, forgotten and written again over the past century on the subject of Zionism and Israel’s unique civil status categories and corresponding practices. For a person with a long life and memory, it may be surprising to find that the crucial distinction between nationality and citizenship in Israel is news to so many people concerned with the conflict and problem of Zionism. Understandably for observers not regularly engaged in the conflict, such as human rights treaty body members, the concept has been a revelation.1
What is “Jewish nationality” and what does it mean for Palestinian refugees, IDPs and Palestinians still remaining in their homes and lands?
“Jewish nationality” is a concept arising from Zionist ideology that has evolved in Israeli law pertaining to civil status, but which also lies at the base of official policy and practice. “Jewish nationality” status is a key to understanding the State of Israel’s ideology and machinery for acquiring the properties and other assets of the indigenous Palestinian people. Thus, religious affiliation, as “Jewish nationality” status is the criterion for determining who benefits from the economic and cultural assets of Palestine. Consequently, it also determines who loses in the material, social, cultural and political sense. It is a far more fundamental criterion for distributing rights and privileges than military service, mere Israeli citizenship, or even temporal connection with the country. The ideological criterion of “Jewish nationality,” therefore, is the lynch pin of the Zionist colonization project.
Already in 1863, the U.S. Civil War-era Lieber Code, which influenced the subsequent Hague Conventions, instructed that, in our modern age, “private citizens are no longer carried off to distant parts.”(1) That claim now appears majestically naïve and tragically premature. At a time when the UN Subcommission on Prevention of Discrimination and Protection of Minorities was considering the human rights dimensions of “population transfer,”(2)