Reply #53: There is an international definition of the crime of Apartheid [View All]

[FarrenH]

And according to respected jurists of international law, Israel is in breach of it. Since you refuse to read their findings, which clearly demonstrate, employing facts on the ground and the specific international convention describing the crime of Apartheid, that Israeli is imposing a racist system of Apartheid, I will read it to you. When you can answer the following legal analysis, you have a case. Until then you're just waving your hands around, crying "demonization" and making facile arguments that finer minds than you have already throughly addressed and debunked (entire study can be found http://www.hsrc.ac.za/Document-3227.phtml">here(pdf)):

Chapter IV
Review of Israeli Practices relative to the Prohibition of Apartheid
PART I: INTERPRETATION AND THE CHAPEAU OF ARTICLE 2
(I) A. Prohibitions of Apartheid in International Law
To assess whether the State of Israel is practising apartheid in the occupied Palestinian Territory
(OPT), this report draws principally on the definition of apartheid contained in the International
Convention on the Suppression and Punishment of the Crime of Apartheid (hereafter, Apartheid
Convention).726 Chapter I outlined the Convention’s history and its relationship to the International
Convention on the Elimination of All Forms of Racial Discrimination (ICERD), confirmed that the
prohibition of apartheid is a customary jus cogens norm creating obligations erga omnes, and
established that, having ratified ICERD, Israel is obliged under Article 3 to ‘prevent, prohibit and
eradicate’ racial segregation and apartheid in territories under its jurisdiction.
The definition of apartheid in the Apartheid Convention is contained in Article 2 and reads in full as
follows:
For the purpose of the present Convention, the term ‘the crime of apartheid’, which shall
include similar policies and practices of racial segregation and discrimination as practised in
southern Africa, shall apply to the following 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:
(a) Denial to a member or members of a racial group or groups of the right to life and liberty
of person:
(i) By murder of members of a racial group or groups;
(ii) By the infliction upon the members of a racial group or groups of serious bodily or
mental harm, by the infringement of their freedom or dignity, or by subjecting them to
torture or to cruel, inhuman or degrading treatment or punishment;
(iii) By arbitrary arrest and illegal imprisonment of the members of a racial group or
groups;
(b) Deliberate imposition on a racial group or groups of living conditions calculated to cause
its or their physical destruction in whole or in part;
(c) 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, in particular by denying to members of a racial group or groups basic human rights
and freedoms, including the right to work, the right to form recognized trade unions, the right
to education, the right to leave and to return to their country, the right to a nationality, the
right to freedom of movement and residence, the right to freedom of opinion and expression,
and the right to freedom of peaceful assembly and association;
d) 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;
(e) Exploitation of the labour of the members of a racial group or groups, in particular by
submitting them to forced labour;
726 Convention on the Suppression and Punishment of the Crime of Apartheid (1973), entered into force 18 July
1976, 1015 U.N.T.S. 243.
CHAPTER IV PROHIBITION OF APARTHEID | 153
(f) Persecution of organizations and persons, by depriving them of fundamental rights and
freedoms, because they oppose apartheid.
This chapter addresses in two parts the general components of this definition: the chapeau (first main
paragraph), which establishes the purpose for which acts of apartheid are practiced, and the list of
‘inhuman acts’ that follows. Part I addresses four general objections that might be raised in applying
the terms of the chapeau to Israel's regime of occupation in the OPT: that Jews and Palestinians are
not racial groups and so their relations cannot be understood within the ambit of apartheid; that Israeli
domination of Palestinians is not on the basis of race but rather citizenship; that Israeli’s practices are
not ‘committed for the purpose of establishing and maintaining domination’ over Palestinians but are
calculated only to defend Israel from a security threat; and that the Apartheid Convention cannot be
applied outside of southern Africa. Part I also offers an overview of apartheid in southern Africa as a
framework for later comparative discussion of specific practices. Part II then conducts a categorical
survey of Israel’s practices in light of the six categories of acts cited in the Apartheid Convention.
(I) B. Race and Racial Discrimination in International Law
The Apartheid Convention defines apartheid as a system of domination and oppression by ‘one racial
group over any other racial group or groups’. The Rome Statute of the International Criminal Court
also defines apartheid as ‘an institutionalized regime of systematic oppression and domination by one
racial group over any other racial group or groups’.727 This language could be interpreted to indicate
that Jews and Palestinians must first be identified as ‘racial groups' in order to test for a regime of
apartheid. Since the question of race is especially sensitive in this context for historical reasons, it
must be approached here with due care.
Until recently, international human rights law did not define race or clarify by what criteria groups
should be understood as racial groups, ethnic groups or national groups. The United Nations Charter
(1945), the Universal Declaration of Human Rights (1948) and ICERD all prohibit discrimination on
the basis of race as well as other identities, but none defines ‘race’ itself. In Article 1(1), ICERD lists
‘race’ is one of several group identities that can be a basis for ‘racial discrimination’:
the term ‘racial discrimination’ shall mean any distinction, exclusion, restriction or preference
based on race, colour, descent, or national or ethnic origin which has the purpose or effect of
nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of human
rights and fundamental freedoms in the political, economic, social, cultural or any other field
of public life.
Thus, ICERD provides a broad construction of the term ‘racial’ to encompass a wide range of group
categories against which discrimination is prohibited. The Apartheid Convention invokes ICERD in
its preamble and defines apartheid to ‘include similar policies and practices of racial segregation and
discrimination as practised in southern Africa’. This reference to ICERD can be understood as
indicating that the Apartheid Convention may be interpreted as applying to a system of
institutionalised domination and oppression by one racial group over another in a broad sense and
need not be limited to a narrow construction of ‘race’.
This interpretation is supported by changing meanings and usages of the term ‘race’. The term ‘race’
was once considered an acceptable synonym for ‘people’ or ‘nation’.728 In the late-nineteenth century,
race was developed as an off-shoot of European colonial discourse as a pseudo-scientific way to
categorise the human species. Since the mid-twentieth century, when both these usages were finally
discredited, races have become understood as identities that are socially constructed in each local
727 Elements of Crimes, ICC-ASP/1/3(part II-B), entered into force 9 September 2002, Article 7(1)(j), Element
4.
728 Argentine nationalist Jose Ingenieros reflected this general usage when he wrote in 1915 that, ‘to say nation,
is to say race; national unity is not equivalent to political unity, but to spiritual and social unity, to national
unity’: ‘La formación de una raza argentina’ (1915) 11 Revista de Filsofía at 146.
154 | THE PROHIBITION OF APARTHEID CHAPTER IV
setting and the term ‘race’ has fallen out of common use, except where speaking of racial
discrimination. Contemporary theory of race now understands racial discrimination as resulting from
‘racial formation’, in which a dominant group constructs a subordinate population as one racial
category for the purpose of ensuring its political marginalisation and economic subordination.729
Regarding groups that in earlier eras were called ‘races’, the term ‘race’ has been replaced by terms
considered more scientifically and socially ‘correct’, such as ‘ethnicity’ or ‘nationality’: thus Serbs,
Bosnians, and Roma are now called ethnicities or nationalities rather than ‘races’.730
A change in terminology by itself does not necessarily ameliorate racial discrimination. The switch to
a term like ‘ethnicity’ may even be made principally to disguise or deny persistent discrimination.731
Consequently, whether groups are functioning socially as ‘racial groups’ (in the sense of imposing or
being subjected to racial discrimination) cannot be determined reliably by whether they are called
‘races’ in the local setting but must be determined by observing whether relations between the groups
reproduce the practices of domination and oppression associated with racial discrimination.
(I) B.1. The Politics of Racial Terminology in South Africa
Practices in apartheid South Africa illustrate the need to approach racial identity as a social
construction and also how the labels for group identities can be interchangeable and even
manipulated. Superficially, the racial system constructed by the apartheid government was clinical
and definitive. The Population Registration Act 30 of 1950 classified South Africans as ‘white’,
‘Coloured’ or ‘Native.’732 Proclamation 46 of 1959 further divided the ‘Coloured’ group into ‘Cape
Coloured’, ‘Cape Malay’, ‘Griqua’, ‘Indian’, ‘Chinese’, ‘other Asiatic’ and ‘other Coloured’. The
consequences of classification were immense, as it determined the daily reality of each person’s life.
So-called ‘petty apartheid’ was the strict segregation of these groups in public facilities and space,
such as South Africa’s beaches, according to race. The Reservation of Separate Amenities Act 49 of
1953 required the provision of separate buildings, services and conveniences for the different racial
groups.733 By the end of the 1950s, the use of all public facilities, from stations and post offices, to
park benches and public toilets, was strictly controlled according to the race of the person wishing to
use the particular facility. Signs indicated which seat, or entrance, or cubicle, or beach was reserved
for the use of this or that particular racial group. The system generated peculiar special arrangements:
for example, black nursemaids were allowed on a ‘whites only’ beach if they were tending white
children.
At a practical level, various pseudo-scientific ‘tests’ were used to determine a person’s race:
Fingernails have been examined. Combs have been pulled through people’s hair: if the comb
is halted by tight curls, the person is more likely to be classified Coloured than white. In July
729 See especially Michael Omi and Howard Winant, Racial Formation in the United States: From the 1960s to
the 1990s’ (New York: Routledge, 1994); also the collected studies in Paul Spickard (ed.), Race and Nation:
Ethnic Systems in the Modern World (New York: Routledge, 2005).
730 Recognition that race was a concept in flux inspired UNESCO to solicit essays in 1950, 1951, 1965 and 1967,
issued in 1969 as Four Statements on the Race Question (COM.69/II.27/A, available at:
http://unesdoc.unesco.org/images/0012/001229/122962eo.pdf. See David Keane, Caste-based discrimination in
international law (Ashgate, 2007), pp.162-168. On evolving concepts of race and ethnicity, see also Michael
Omi and Howard Winant, Racial Formation in the United States: From the 1960s to the 1980s (Routledge,
1986); Kenan Malik, The Meaning of Race: Race, History, and Culture in Western Society (New York
University Press, 1996); and works by Anthony D. Smith, especially his classic, The Ethnic Origin of Nations
(Blackwell1986).
731 See Virginia Tilley, ‘Mestizaje and the ‘Ethnicization of Race in Latin America’, in Paul Spickard (ed.), Race
and Nation: Ethnic systems in the Modern World (New York and London: Routledge, 2005).
732 The term ‘Native’ was later changed to ‘Bantu’ and later still to ‘black’.
733 Roger Omond, The Apartheid Handbook – Second Edition (Harmondsworth: Penguin Books, 1986), , p. 53.
CHAPTER IV PROHIBITION OF APARTHEID | 155
1983 an abandoned baby, named Lise Venter by hospital staff, was found near Pretoria. To
classify her by race, as the Population Registration Act demands, a strand of her hair was
examined by the Pretoria police laboratory: she was then classified Coloured.734
Yet the registry system and its identity tests laboured to administer a population with a full spectrum
of physical features and pseudo-scientific methods generated endemic social confusion. Members of
an extended family could be classified as belonging to different races. Parents classified as black
could be told their children were coloured and must therefore live in a separate area. Children of the
same parents might be given different classifications. Couples of different race groups (who had
married before such unions were declared illegal) could find their children assigned indiscriminately
to several other groups. A Race Classification Board took the final decision on disputed cases.
Applications for changes in categories resulted in so-called ‘chameleons’, who were formally
authorised to have changed racial identity.
South African tests to determine an individual’s race did not solely use physical indicators, however,
but included ‘general acceptance’ and ‘repute’. Definitions of the racial groups in the Population
Registration Act of 1950 included both ‘appearance’ and social ‘acceptance’:
A White person is one who is in appearance obviously white – and not generally accepted as
Coloured – or who is generally accepted as White – and is not obviously Non-White,
provided that a person shall not be classified as a White person if one of his natural parents
has been classified as a Coloured person or a Bantu ... A Bantu is a person who is, or is
generally accepted as, a member of any aboriginal race or tribe of Africa.
That the term ‘race’ might be replaced by ‘ethnicity’ to obscure ongoing policies of racial
discrimination was illustrated by ‘Grand Apartheid’ in South Africa. Apartheid was incontestably a
racial system, but in the 1970s the apartheid government tried to deny this, affirming that the black
population was actually divided into various ‘ethnic’ groups that properly constituted separate nations
—Zulu, Xhosa, Venda, Tswana, Sotho, and so forth— which were defined by the white government
according to various linguistic, cultural, historical and geographic criteria.735 This switch in
terminology served two functions. First, it supported the white government’s claims that South Africa
did not have a ‘black’ African majority, as the white population was larger than any one black ethnic
group. Second, it supported the apartheid government’s argument that each black ethnic ‘nation’
would properly exercise its right to self-determination in a titular Homeland, also defined and
delineated by the white government, thus allowing white (actually, Afrikaner) self-determination to be
exercised in the rest of South Africa.736 The African National Congress always rejected this ploy,
insisting that linguistic and cultural differences among the black population must not be politicised
and that black political unity must be maintained to combat racial domination and oppression.
(I) B.2. Interpreting Identity: The International Criminal Tribunals
The inherent difficulty of adjudicating group identities confronted the International Criminal Tribunal
for the former Yugoslavia (ICTY) and for Rwanda (ICTR). Even legal classification on identity
documents—particularly relevant in the case of the Rwandan genocide—was found to be not entirely
reliable.
The ICTR, in the seminal Akayesu case, attempted to establish meanings for national, ethnical, racial
or religious identities, as these are listed in Article 2 of its Statute (based on the 1948 Genocide
Convention). The Tribunal held that a national group is ‘a collection of people who are perceived to
734 Omond, The Apartheid Handbook, p. 26.
735 See discussion of the Population Registration Act in Part I.D(1), and Part II.G(2)(a), below.
736 See discussion and description in TRC Report, Vol. 2, Ch. 5: see also discussion of Article 2(d) in section
II.G(2)(a) of this chapter.
156 | THE PROHIBITION OF APARTHEID CHAPTER IV
share a legal bond based on common citizenship, coupled with reciprocity of rights and duties.’737 An
ethnic group was defined as ‘a group whose members share a common language and culture’.738 A
religious group is one whose members ‘share the same religion, denomination or mode of worship.’739
A racial group is one that shares ‘hereditary physical traits often identified with a geographical region,
irrespective of linguistic, cultural, national or religious factors.’740 (Regarding the category of national
groups, the ICTR drew on an earlier ICJ case involving nationality,741 but in social usage, the term
‘nationality’ may also refer to groups without States, such as nationalities in the former Soviet Union,
or identities retained through generations, as, for example, the origins of immigrant populations.
ICERD uses ‘national origin’ which suggests this wider meaning.742)
The Tribunals recognised that none of these categories could be externally determined with any
reliability. Rather, local perceptions of group identities were a determinative factor in identifying
protected groups. Even where identities were codified in legislation and identity cards, 743 the ICTR
Trial Chamber found that what mattered principally was whether the victims considered themselves
as belonging to one of the protected groups, or whether the perpetrator considered them as belonging
to one of the protected groups.744 A 2005 ICTY judgment summarised this line of jurisprudence as
follows:
In accordance with the case-law of the Tribunal, a national, ethnical, racial or
religious group is identified by using as a criterion the stigmatisation of the group,
notably by the perpetrators of the crime, on the basis of its perceived national,
ethnical, racial or religious characteristics.745
The ICTR observed that, for all these identities, the protected group should be ‘stable and permanent’:
membership is normally acquired by birth and is continuous, immutable, and not usually
challengeable by its members.746 This seemingly ‘primordial’ quality—that is, the identity is
perceived to be passed down through generations and therefore to be mostly immutable in group
members—is thus the common denominator of identities based on race, colour, descent, and national
and ethnic origin: that is, the groups cited by ICERD as being targets of racial discrimination.
In conclusion, determining whether any group is a ‘racial group’ in the sense provided by the
Apartheid Convention must begin from four premises. First, changing notions of race after the midtwentieth
century have mostly purged the term ‘race’ from social discourse even where racial
737 Prosecutor v. Jean-Paul Akayesu, Case No. ICTR-96-4-T, Judgement (TC), 2 September 1998, Akayesu
Trial Judgment, para. 511.
738 Ibid, paras. 512.
739 Ibid, para. 514.
740 Ibid, para 513.
741 The ICTR cited the Nottebohm case: second phase judgment (Liechtenstein v. Guatemala) 1955, ICJ Reps, 4.
742The United States Census, for example, groups ‘race’ and ‘national-origin’ as one category and specifies that
these are self-identifications rather than externally determined: 2000 Census of Population and Housing: Profiles
of General Demographic Characteristics (May 2001), available at:
http://www.census.gov/prod/cen2000/dp1/2kh00.pdf.
743 Prosecutor v. Rutaganda, paras. 400-1. See also the objective approach followed by the ICTR Trial Chamber
in Akayesu, at para. 702.
744 As the ICTR Trial Chamber made clear in Prosecutor v. Rutaganda, either the victim is perceived by the
perpetrator of genocide as belonging to a group slated for destruction, or the victim may perceive himself as
belonging to the said group. See para. 56.
745 Prosecutor v. Vidoje Blagojevic and Dragan Jokic, Case No. IT-02-60-T, Trial Judgement (TC), 17 January
2005, para. 667, emphasis added.
746 Prosecutor v. Jean-Paul Akayesu, Case No. ICTR-96-4-T, Judgement (TC), 2 September 1998, para. 511.
CHAPTER IV PROHIBITION OF APARTHEID | 157
discrimination continues. Second, the group identities of ICERD—‘race, colour, descent, or national
or ethnic origin’—are all understood in international law to be identities normally acquired at birth
and retained throughout a person’s lifetime. Third, no absolute, measurable, and consistent criteria
exist for distinguishing one of these identities from another, as the labels are frequently
interchangeable and their use may be politicised. Fourth, racial identities are locally constructed: they
emerge from economic and political relations in particular settings and do not necessarily hold for
individuals across world regions.
Accordingly, the question for this study is not whether Jews and Palestinians are ‘races’ in the older
(discredited) sense but whether Jews and Palestinians in the OPT comprise ‘racial groups’ in their
local relation to each other, in the sense of the Apartheid Convention: that is, groups in a relationship
of domination, for which membership is understood to be acquired by birth and thus is experienced as
immutable and incontestable for their members.
(I) B.3. Race and Identity in the Occupied Palestinian Territories
Group identities are in all cases complicated, but the full complexities of Jewish and Palestinian
identities need not be explored here. In this section, Jewish and Palestinian identities are reviewed
briefly for their various permutations of meaning to determine whether they correlate with the
common element of perceived immutability that underwrites the group identities cited in ICERD.
(I) B.3.a. Jewish Identity under the Terms of ICERD
Today, Jews are not normally called a ‘race’. Indeed, it is a common observation that Jews come from
‘all races’ in the sense of the old colour categories (black, white, Asian, and so forth). Like many
groups we now call ‘ethnic’, Jews were called a ‘race’ up to the early twentieth century and some
early Zionist thinkers, like Max Nordau,747 commonly used the term ‘race’ in speaking of Jews and
Jewish interests in Palestine. The Memorandum of Association of the Jewish National Fund (JNF) in
Article 2(c) cites one objective of the JNF as being to ‘benefit, directly or indirectly, those of Jewish
race or descendency’. When the term ‘race’ fell into disrepute around the middle of the twentieth
century, it was especially discredited regarding Jews (after its dreadful deployment in Nazi Germany)
and now is avoided as a term for Jews—except, notably, in references to racial discrimination against
Jews (anti-Semitism).
As discussed earlier, a change in label by itself is not meaningful regarding constructions of identity
that involve racial discrimination. Testing for the existence of such constructions must consider rather
whether the groups are understood locally to be identities acquired at birth and perceived as
immutable, on the basis of which they have been constructed as being in a relationship involving
domination and oppression.
‘Who is a Jew’ is an age-old and even Talmudic question that remains highly contested in Israel (as
elsewhere), particularly around questions of conversion.748 ‘Jewish’ is certainly a religious identity in
the sense that Judaism is a religious faith and anyone can convert to Judaism if willing and able to
follow the required procedures. Yet religious criteria are inadequate to defining ‘Jewish’, in several
ways. First, Halakhah law 749as well as social norms provide that Jewish identity is conveyed from
747 See also Max Nordau, Address to the First Zionist Congress, 29 August 1897, available at:
http://www.mideastweb.org/nordau1897.htm.
748 Most debates about conversion are between the Jewish religious movements and are pursued through the
religious courts and other channels, but see, e.g., Tais Rodriguez-Tushbeim v Minister of Interior and Director
of the Population Register, Ministry of Interior (HCJ 2597/99) and Tamara Makrina and others v Minister of
Interior and Director of the Population Register, Ministry of Interior (HCJ 2859/99), decided 31 March 2005.
749 See Tractate Kiddushin 68b. Talmudic debates were not greatly concerned with the question of Jewish
identity but the terms for conversion were of serious concern.
158 | THE PROHIBITION OF APARTHEID CHAPTER IV
mother to child: hence most Jews today are considered Jewish because they have a Jewish mother.
Jews have indeed long been subjected to anti-Semitic attack, extending to pogroms and genocide,
precisely because Jewish identity is seated notionally in bodies and bloodlines as well as faith.750 This
importance of ancestry or descent to Jewish identity is codified in Israel’s Law of Return:
For the purposes of this Law, ‘Jew’ means a person who was born of a Jewish mother or has
become converted to Judaism and who is not a member of another religion.’751
Moreover, ‘Jewish’ is not a religious identity for those people who acquired Jewish identity at birth
but do not practice or share Jewish religious faith, as they are secular or atheist. These people see
themselves, and are seen by their communities, as Jewish solely on the basis of their Jewish
descent.752
Second, in the late nineteenth century, the Zionist movement conceptualized ‘Jewish’ as a national
identity: that is, as a people or nation which has the right to self-determination in Palestine and that
since 1948 has expressed this right through the State of Israel (as discussed in the next section). At the
same time, the majority of Jews continue to live outside Israel, where in their home countries they are
commonly understood as a 'religious group' or an ‘ethnic group’.753 Thus ‘Jewish’ may be an identity
based on religion, descent, and/or national or ethnic origin depending on the context.
The importance of ancestry to Jewish identity supports the core Zionist claim that Jews have the right
to self-determination and sovereignty in modern Palestine by virtue of this ancestry. Israel’s
Declaration of Independence states this claim plainly in affirming that all Jews today trace their lineal
ancestry to an earlier national life in Palestine and so have an inalienable right to ‘return’ there:754
ERETZ-ISRAEL <(Hebrew) - the Land of Israel> was the birthplace of the Jewish people.
Here their spiritual, religious and political identity was shaped. Here they first attained to
statehood, created cultural values of national and universal significance and gave to the world
the eternal Book of Books.
After being forcibly exiled from their land, the people kept faith with it throughout their
Dispersion and never ceased to pray and hope for their return to it and for the restoration in it
of their political freedom.
Impelled by this historic and traditional attachment, Jews strove in every successive
generation to re-establish themselves in their ancient homeland. In recent decades they
returned in their masses. <…>
The phrase ‘attained to statehood’ in this statement constitutes a claim that Jewish life in Palestine in
antiquity was genuine national sovereignty and that all Jews today share this ancestral national origin.
Its practical implication is that all others, who by virtue of their different descent are not Jews, do not
possess a similar privileged right to a national life in Israel based on their ancestry. This nationalist
750 The Nuremberg Laws of Nazi Germany, for example, defined ‘Jew’ as anyone descended from three Jewish
grandparents or from two Jewish grandparents if that person was also active in a Jewish religious community.
751 Law of Return (Amendment No. 2) 5730-1970.
752 Arguments within Jewish communities about what behaviour is requisite to being Jewish sometimes
reference who is ‘really Jewish’: see for example, Noah Efron, Real Jews: Secular versus Ultra-Orthodox: The
Struggle for Jewish Identity in Israel (Basic Books, 2003).
753 Literature on Jewish nationalist (Zionist) discourse is very wide reflecting its many currents: major architects
include Teodor Herzl (The Jewish State, first published in Vienna in 1896), Vladimir Jabotinsky, Alan Ginsberg
(Ahad Ha’am), David Ben Gurion, Yehuda Magness, Martin Buber, and many other political leaders and
philosophers.
754 See Israel's Declaration of the Establishment of the State of Israel, May 14, 1948 available at:
http://www.mfa.gov.il/MFA/Peace+Process/Guide+to+the+Peace+Process/Declaration+of+Establishment+of+S
tate+of+Israel.htm.
CHAPTER IV PROHIBITION OF APARTHEID | 159
dimension of Jewish identity is further expressed in Israeli law and doctrine establishing Israel as a
‘Jewish state’, as discussed next.
(I) B.3(b) Jewish National Identity: Israel as a Jewish State
Israeli Basic Law establishes Israel as the state of the Jewish people. Israeli Basic Law: Knesset755
describes Israel as ‘the state of the Jewish people’. Basic Law: Human Dignity and Liberty756 and
Basic Law: Freedom of Occupation757 both specify concerns with ‘the values of the State of Israel as a
Jewish and democratic state’. The 1952 World Zionist Organisation–Jewish Agency (Status) Law,758
whose importance is discussed below, also specifies that Israel is the state of the Jewish people:
1. The State of Israel regards itself as the creation of the entire Jewish people, and its gates are
open, in accordance with its laws, to every Jew wishing to immigrate to it.
That these provisions are not merely symbolic formulas but establish a basis in Israeli law for racial
discrimination is clarified by other Israeli laws that build from the same premise of Jewish statehood.
For example, Basic Law: Israel Lands759 provides that ownership of real property held by the State of
Israel, the Development Authority and the Jewish National Fund must not be transferred but held in
perpetuity for the benefit of the Jewish people. About 93 percent of land inside Israel falls into this
category and cannot be leased by non-Jewish citizens of Israel.760 This law applies to any land in the
OPT that is declared ‘state land’. Article 1 of the State Property Law of 1951761 provides that land
becomes state land in any area ‘in which the law of the State of Israel applies’. As all Jewish
settlements in the OPT are ostensibly built on state land (although this is only partly true, as discussed
in I.C.5(c)) and large areas of the West Bank have been declared state lands and closed to Palestinian
use, this places much of the West Bank under the authority of an Israeli state institution that is legally
bound to administer state land for the benefit of the Jewish people.
Similar discrimination is authorised by the 1952 Status Law, cited earlier, which confirms the Jewish
Agency and World Zionist Organisation (hereafter JA-WZO) as the ‘authorised agencies’ of the state
to administer Jewish national affairs in Israel and in the OPT.762 Their authority is detailed in a
‘Covenant’ that provides for a Co-ordinating Board—composed half of Government and half of
Jewish Agency members—and grants them broad authority to serve the Jewish people, including:
755 Passed by the Knesset on the 12th Adar Bet, 5752 (17th March, 1992) and published in Sefer Ha-Chukkim
No. 1391 of the 20th Adar Bet, 5752 (25th March, 1992); the Bill and an Explanatory Note were published in
Hatza'ot Chok, No. 2086 of 5752, p. 60.
756 Passed by the Knesset on 12 Adar 5752 (17th March 1992) and amended on 21 Adar, 5754 (9th March,
1994). Amended law published in Sefer Ha-Chukkim No. 1454 of the 27th Adar 5754 (10th March, 1994), p.
90; the Bill and an Explanatory Note were published in Hatza'ot Chok No. 2250 of 5754, p. 289.
757 Passed by the Knesset on the 22nd Shevat, 5718 (12th February, 1958) and published in Sefer Ha-Chukkim
No, 244 of the 30th Shevat, 5718 (20th February. 1958). p. 69; the Bill was published in Hatza'ot Chok No, 180
of 5714, p. 18.
758 7 Israel Laws 3 (1952).
759 Passed by the Knesset on the 24th Tammuz, 5720 (19th July, 1960) and published in Sefer Ha-Chukkim No.
312 of the 5th Av, 5720 (29th July, 1960), p. 56 ; the Bill and an Explanatory Note were published in Hatza'ot
Chok No. 413 of 5720, p. 34.
760 Israel Land Administration., ‘General Information: Background’, available at:
http://www.mmi.gov.il/Envelope/indexeng.asp?page=/static/eng/f_general.html.
761 State Property Law (5711-1951), passed by the Knesset on the 30th Shevat, 5711 (6th February, 1951) and
published in Sefer Ha-Chukkim No.68 of the 9th Adar Alef 5711 (15th February, 1951); the Bill and an
Explanatory Note were published in Hatza'ot Chok No.54 of the 2nd Cheshvan, 5711 (13th October, 1930), p.
12.
762 The Status Law was amended in 1975 to restructure this relationship: see World Zionist Organisation–Jewish
Agency for Israel (Status) (Amendment) Law, 5736–1975.
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The organising of immigration abroad and the transfer of immigrants and their property to
Israel; co-operation in the absorption of immigrants in Israel; youth immigration; agricultural
settlement in Israel; the acquisition and amelioration of land in Israel by the institutions of the
Zionist Organisation, the Keren Kayemeth Leisrael and the Keren
Hayesod ; participation in the establishment and the expansion of
development enterprises in Israel; the encouragement of private capital investments in Israel;
assistance to cultural enterprises and institutions of higher learning in Israel; the mobilisation
of resources for financing these activities; the co-ordination of the activities in Israel of
Jewish institutions and organisations acting within the limits of these functions by means of
public funds.763
A principle task of the JA-WZO, as expressed in the Status Law, is to work actively to build and
maintain a Jewish majority in Israel:
… 5. The mission of gathering in the exiles, which is the central task of the State of Israel and
the Zionist Movement in our days, requires constant efforts by the Jewish people in the
Diaspora; the State of Israel, therefore, expects the cooperation of all Jews, as individuals and
groups, in building up the State and assisting the immigration to it of the masses of the
people, and regards the unity of all sections of Jewry as necessary for this purpose.764
This imperative was reaffirmed in the WZO’s operational platform, expressed in 2004 as the
Jerusalem Programme, which reads:
Zionism, the national liberation movement of the Jewish people, brought about the
establishment of the State of Israel, and views a Jewish, Zionist, democratic and secure State
of Israel to be the expression of the common responsibility of the Jewish people for its
continuity and future. The foundations of Zionism are:
• The unity of the Jewish people, its bond to its historic homeland Eretz Yisrael, and the
centrality of the State of Israel and Jerusalem, its capital, in the life of the nation;
• Aliyah to Israel from all countries and the effective integration of all immigrants into
Israeli Society.
• Strengthening Israel as a Jewish, Zionist and democratic state and shaping it as an
exemplary society with a unique moral and spiritual character, marked by mutual respect
for the multi-faceted Jewish people, rooted in the vision of the prophets, striving for peace
and contributing to the betterment of the world.
• Ensuring the future and the distinctiveness of the Jewish people by furthering Jewish,
Hebrew and Zionist education, fostering spiritual and cultural values and teaching
Hebrew as the national language;
• Nurturing mutual Jewish responsibility, defending the rights of Jews as individuals and as
a nation, representing the national Zionist interests of the Jewish people, and struggling
against all manifestations of anti-Semitism;
• Settling the country as an expression of practical Zionism.
763 Covenant Between the Government of Israel and The Zionist Executive called also the Executive of the
Jewish Agency, signed 26 July 1954.
764 World Zionist Organisation - Jewish Agency (Status) Law, 5713-1952
CHAPTER IV PROHIBITION OF APARTHEID | 161
Relevant to the present study is that, in 1978, the head of the JA/WZO Settlement Department,
Mattityahu Drobles,765 declared that the entire West Bank is an integral part of the Land of Israel and
proposed a ‘master plan’ for settling Jews in the territory to consolidate this status.766 From this time,
the JA-WZO extended its mandate into the OPT to serve Jewish-national interests according to the
terms of the Covenant. Legal restrictions require that the Jewish Agency operates inside Israel and the
World Zionist Organisation in the OPT, but this division of geographic ambit operates structure the
partnership between the two agencies in building infrastructure that completes the fusion of the OPT
into Israel: for example, by jointly building settlements that straddle the green line around the West
Bank and the highway system that integrates Israeli cities and towns with West Bank Jewish
settlements. Thus Jewish settlements in the OPT, built on ‘state land’ managed for Jewish-national
interests by the Israel Lands Authority, are planned and established by institutions that are authorised
by the State of Israel to serve the Jewish nation exclusively.
The Status Law is linked to a second body of Israeli law and jurisprudence that distinguishes between
citizenship (in Hebrew, ezrahut) and nationality (le’um). Other states have made this distinction: for
example, in the former Soviet Union, Soviet citizens were also divided by nationalities although all
nationalities had juridically equal standing. In Israel, by contrast, only one nationality has standing or
rights and only one is associated with the state. According to Israel’s High Court, Israel is indeed not
the state of the ‘Israeli nation’ but of the ‘Jewish nation’.767 Collective rights are reserved to Jewish
nationality. For instance, the 1950 Law of Return768 serves the ‘ingathering’ mission cited above by
allowing any Jew to immigrate to Israel and, through the Citizenship Law, to gain immediate
citizenship. No other national group has a comparable right or any other collective right.
This legal formulation and privileging of Jewish nationality shapes Israeli policy in the OPT in several
ways. First, it has contributed to determining the demography of the OPT. About 1.8 million of the
Palestinians now living in the OPT are refugees who fled or were expelled from homes inside Israel in
1948, yet are not allowed to return to Israel and obtain Israeli citizenship because they are not Jews.
Second, it has contributed to the construction of Jewish settlements in the OPT. As noted above, the
Israel Lands Authority and the JA-WZO are authorised by Israeli State law to administer ‘state lands’
and property in the OPT in the interests of Jews only. As later discussion clarifies, Israel extends the
services of these institutions—and Israeli civil law and protections—to Jews in the OPT whether or
not they are Israeli citizens, on grounds of their Jewish identity.
Since much of Israel’s presence in the West Bank involves the operations of the Jewish-national
institutions, Israeli military policy to ensure the security of these agencies and their work—
particularly the construction and security of Jewish settlements—could be seen to have the purpose
and effect of securing Jewish-national interests in the OPT and accordingly dominating the Palestinian
population in the OPT on the basis of race. Whether Israeli state doctrine and law operates in the OPT
to discriminate against Palestinians in ways consistent with the definition of apartheid in Article 2 of
the Apartheid Convention is the subject of this study.
Thus, Israeli law constructs Jewish identity as a national identity: that is, as a people which holds
national rights to self-determination and sovereignty in historic Palestine. Israeli law does not
765 As the Jewish Agency and World Zionist Organisation operate in tandem, particularly in the Settlement
Department which shares one office, Drobles is sometimes listed as head of one or the other. The distinction is
essentially meaningless.
766 World Zionist Organisation Department for Rural Settlement, ‘Master Plan for the Development of
Settlement in Judea & Samaria 1979–1983, October 1978; available as U.N. Doc. S./13582 Annex (22 October
1979).
767 George Rafael Tamarin v. State of Israel, 20 January 1972, in Decisions of the Supreme court of Israel
(Jerusalem: Supreme Court, 1972), vol. 25, pt. 1, 197 (in Hebrew).See also Roselle Tekiner, ‘On the Inequality
of Israeli Citizens,’ Without Prejudice Vol. 1, No. 1 (1988), 9-48.
768 Law of Return 5710-1950, 10 March 1970.
162 | THE PROHIBITION OF APARTHEID CHAPTER IV
recognise any other national identity and rejects comparable rights to any other population resident in
the territory of Mandate Palestine. Israeli law does not explicitly construct Palestinians as a distinct
racial group, but formulating Jewish identity and rights in Israeli law and doctrine as being based on a
shared ancestry tracing a national life in antiquity constructs all other groups—including Palestinian
Arabs—as lacking any right to a national life in Palestine by virtue of their different ancestry. This
formulation fits the concerns of ICERD by according different rights to groups on the basis of
identities that are understood to be acquired at birth and are experienced as mostly immutable for
group members.
(I) B.3(c). Palestinian Identity under the terms of ICERD
‘Palestinian’ is experienced by Palestinians primarily as a national identity, associated with present
residence or family origins in the territory of Mandate Palestine. During the British Mandate,
‘Palestinian’ was a citizenship and Palestinians held Palestine passports, although Palestine was not
then an independent State.769 As millions of Palestinians remain stateless and millions more have
obtained the citizenship of third states, Palestinian national identity is thus associated with ‘national
origin’ (rather than nationality in the sense of citizenship). Today Palestinian Arabs, wherever they
reside,770 draw strongly on ideas of family origins and the frustrated need and desire for an
independent national life in Palestine. By proposing Palestinian indigeneity in Palestine as the core of
Palestinian identity, Palestinian nationalism directly challenges the Zionist claim of terra nullius in
Palestine and a prior and pre-eminent Jewish claim to indigeneity in Palestine.
Palestinian national identity is nested within the larger national identity of ‘Arab’. The Charter of the
Palestine Liberation Organisation (PLO), composed in 1968, affirms the importance of Arab identity
in Article 1:
Palestine is the homeland of the Arab Palestinian people; it is an indivisible part of the Arab
homeland, and the Palestinian people are an integral part of the Arab nation.
The PLO’s 1988 Declaration of Independence reiterated this view, invoking Arab nationalism and
pan-Arab solidarity:
The State of Palestine is an Arab state, an integral and indivisible part of the Arab nation, at
one with that nation in heritage and civilisation, with it also in its aspiration for liberation,
progress, democracy and unity. The State of Palestine affirms its obligation to abide by the
Charter of the League of Arab States, whereby the coordination of the Arab states with each
other shall be strengthened.771
In this conception, the Palestinian nation is still part of the larger pan-Arab nation but it is the
Palestinian people that holds the right to self-determination.
Within the territory which formed Mandate Palestine , Palestinian identity is an ethnic identity in
being distinguished by local customs and the Arabic language.772 Millions of Palestinians living
elsewhere do not necessarily share these customs, however, though they may celebrate them
769 See, for example, Mutaz Qafisheh, A Legal Examination of Palestinian Nationality under the British Rule,
unpublished doctoral thesis (No. 745), University of Geneva, Institut Universitaire de Hautes Etudes
Internationales (Geneva, 2007).
770 The Palestinian population totals some nine to ten million people, of whom about 3.9 million live in the OPT,
about 1.3 million live in Israel, and about 1.8 million live as refugees in Jordan, Syria, and Lebanon.
771 Palestinian Declaration of Independence, Algiers, November 15, 1988: reproduced in Yehuda Lukacs, The
Israeli-Palestinian Conflict – a documentary record 1967-1990 (Cambridge: Cambridge University Press,
1992).
772 On Palestinian national identity, see especially Rashid Khalidi, Palestinian Identity: The Construction of
Modern National Consciousness (Columbia, 1997).
CHAPTER IV PROHIBITION OF APARTHEID | 163
symbolically as part of Palestinian nationalist expression, so ethnicity in the sense of customs and
language is not a consistent factor in Palestinian identity.
Religion is not a marker of Palestinian identity, due to the population’s mixed confessional
composition.773 The PLO Charter affirms a non-discriminatory view of religion:
Article 16: The liberation of Palestine, from a spiritual point of view, will provide the Holy
Land with an atmosphere of safety and tranquility, which in turn will safeguard the country's
religious sanctuaries and guarantee freedom of worship and of visit to all, without
discrimination of race, colour, language, or religion. Accordingly, the people of Palestine look
to all spiritual forces in the world for support.
In this vein, the PLO Charter specifies that those Jews ‘who had normally resided in Palestine until
the beginning of the Zionist invasion’ are considered Palestinians. Nonetheless, Israeli policy and
doctrine has constructed Palestinian identity as a religious identity to the extent that Palestinians are
understood not to be Jewish. treat Palestinian Arabs fundamentally through their identity as non-Jews
(understood in religious, national and ethnic terms) who must, on this basis, be excluded from Jewish
settlements and adjacent lands in the OPT. Israel’s translation of this doctrine into specific policies
and practices in the OPT is examined in Part II of this chapter.
In conclusion, Jewish and Palestinian are group identities that are understood to be acquired at birth,
in which membership is seen as continuous, immutable and not usually challengeable. On the basis of
the two groups’ perceptions of themselves as distinct, third parties including the British Mandate
authorities and the UN Committee on the Elimination of Racial Discrimination have treated them as
such. Further, ‘Jewish’ functions in Israel-Palestine as a group identity in which ideas about descent,
nation, religion, and ethnicity combine to support doctrines, promoted by the State and embedded in
Israeli law, which hold that lineal Jewish descent from antiquity justifies extending special rights and
privileges to Jews in historic Palestine, denying the rights of non-Jewish Palestinians. Thus Jewish
and Palestinian identities, as they operate in the OPT in relation to each other, fit the concerns of
ICERD regarding racial discrimination and function as ‘racial groups’ for the purpose of the
definition of apartheid.
(I) B.4. Inadmissibility of Discrimination based on Citizenship
It may be argued that Israel cannot be held responsible for apartheid, whether under ICERD or the
Apartheid Convention, because Palestinians under occupation are treated differently from Jewish
settlers in the same territory not because Jews and Palestinians are locally constructed as racial groups
but only because they are not Israeli citizens. In Article 1(2), ICERD provides that ‘this Convention
shall not apply to distinctions, exclusions, restrictions or preferences made by a State Party to this
Convention between citizens and non-citizens’. Ex facie, Israel could rely on Article 1(2) to justify
any ‘distinctions, exclusions, restrictions or preferences’ it makes in favour of its own citizens in the
OPT.
It is submitted here that such a claimed justification would be in breach of Israel’s duty to apply
ICERD in good faith, which is codified in Article 2(6) of the Vienna Convention of the Law of
Treaties.774 Such a claimed justification would amount to an abuse of right on the part of Israel.775
773 A survey in 1944 found that about 8 percent of the population of Palestine was Christian, although other
sources put the proportion higher: see Table I: ‘Population of Palestine by Religions’ in A Survey of Palestine:
Prepared in December 1945 and January 1946 for the information of the Anglo-American Committee of
Inquiry, Volume I, p. 141; reprinted by the Institute for Palestine Studies (Washington, DC, 1991).
774 Article 2(6), which is a codification of pre-existing custom, provides: ‘Every treaty in force is binding upon
the parties to it and must be performed by them in good faith’.
775 On the doctrines of good faith and the related matter of abuse of right (abus de droit) see, for example, B.
Cheng, General principles of law as applied by international courts and tribunals (London: Stevens, 1953), pp.
106-160; H. Lauterpacht, The function of law in the international community (Clarendon Press: Oxford: 1933),
164 | THE PROHIBITION OF APARTHEID CHAPTER IV
The rule in Article 1(2) must be construed, in the words of CERD ‘so as to avoid undermining the
basic prohibition of discrimination’.776 The Committee adds:
Under the Convention, differential treatment based on citizenship or immigration status will
constitute discrimination if the criteria for such differentiation, judged in the light of the
objectives and purposes of the Convention, are not applied pursuant to a legitimate aim, and
are not proportional to the achievement of this aim.777
As Keane has observed, ‘such distinctions cannot, however, be made on the grounds of race, colour,
descent, or national or ethnic origin’.778
The legitimacy of an occupant differentiating between its citizens and non-citizens to the benefit of
the former within occupied territory accordingly must be determined by reference to the law of
belligerent occupation.779 Only by virtue of being an occupant is Israel entitled to exercise jurisdiction
in the OPT. By virtue of that same jurisdiction, Israel is also bound to apply ICERD. This intrusion of
specific context allows for the operation of the lex specialis principle in its second interpretative form:
the ‘general’ law embodied in ICERD falls to be interpreted in the light of the ‘special’ law contained
in the regime of belligerent occupation.
The fundamental premise of the law of belligerent occupation is the protection of the territory’s
civilian population who are not nationals of the occupying power—that is, ‘protected persons’ within
the meaning of Article 4 of the Fourth Geneva Convention. This obligation arises from the
occupant’s primary duty under Article 43 of the Hague Regulations to ‘take all the measures in his
power to restore, and ensure, as far as possible, public order and safety, while respecting, unless
absolutely prevented, the laws in force in the country’.780 In passing, Gasser notes that an occupant
should not observe provisions of the law in force in occupied territory which are incompatible with
international humanitarian law binding upon the occupying power, expressly giving as an example
pp. 286-306; V. Paul, ‘The abuse of rights and bona fides in international law’ (1977) 28 Österreichische
Zeitschrift für Öffentliches Recht und Völkerrecht 107; G. Schwarzenberger, ‘The fundamental principles of
international law’ (1956) 87 Recueil des cours at 290-326; G. Taylor, ‘The content of the rule against the abuse
of rights in international law’ (1972–73) 46 British Yearbook of International Law 323; H. Thirlway, ‘The law
and procedure of the International Court of Justice 1960-1989 Part One’ (1989) 60 British Yearbook of
International Law 4 at 7-49; and G. White, ‘The principle of good faith’, in V. Lowe V and C. Warbrick (eds.),
The United Nations and the principles of international law: essays in memory of Michael Akehurst (London:
Routledge, 1994).
776 Committee on the Elimination of Racial Discrimination, General Comment No. 30: Discrimination Against
Non-Citizens, 1October 2004, paragraph 2.
777 Ibid, paragraph 5.
778 David Keane, Caste-based Discrimination in International Human Rights Law (Ashgate: Aldershot, 2007),
p. 183.
779 In the alternative, it may be argued that this approach is mandated by Article 31.3.c of the Vienna
Convention on the Law of Treaties which requires treaties to be interpreted in good faith, taking into account
‘any relevant rules of international law’. On this, see C. McLachlan, ‘The principle of systemic integration and
Article 31(3) of the Vienna Convention’ (2005) 54 International and Comparative Law Quarterly 279.
780 For exegeses of Article 43 see, for example, Y. Dinstein Y, Legislation under Article 43 of the Hague
Regulations: belligerent occupation and peacebuilding, available at: www.hpcr.org/pdfs/OccasionalPaper1.pdf;
G. von Glahn, The occupation of enemy territory: a commentary on the law and practice of belligerent
occupation (Minnesota: University of Minnesota Press, 1957), pp. 94-105; C. Greenwood, ‘The administration
of occupied territory in international law’, in E. Playfair (ed.), International law and and the administration of
occupied territory (Oxford: Clarendon Press, 1992), p. 241; M. Sassòli, Article 43 of the Hague Regulations and
peace operations in the twenty-first century, available at: www.ihlresearch.org/ihl/pdfs/sassoli.pdf; G.
Schwarzenberger, International law as applied by international courts and tribunals. Vol.II: The law of armed
conflict (London: Stevens, 1968), pp. 191-210; and E. Schwenk, ‘Legislative power of the military occupant
under Article 43, Hague Regulations’ (1944–45) 54 Yale Law Journal 393.
CHAPTER IV PROHIBITION OF APARTHEID | 165
‘openly discriminatory measures’.781 If an occupant should not apply existing laws of this nature
then, it follows, he should not introduce them.
Leaving that consideration to one side, under Article 43 of the Hague Regulations, the occupying
power may enact measures for the security of its forces within the territory (or suspend existing law if
its application would prejudice their security) and for any other personnel required to fulfil its duty to
maintain public order. This is a strict requirement:
the occupying authorities may not enact provisions other than those directly justified by
considerations of military security or public order.782
This requirement precludes the occupant’s introducing measures that differentiate between its citizens
present in occupied territory who are not members of its forces or administration of occupation and
civilians who are not its citizens (and therefore protected persons), to the benefit of the former. This
would be an ultra vires act, in breach of the scope of the occupant’s legislative powers under Article
43 of the Hague Regulations. The limitations imposed by this Article on the occupant’s legislative
powers thus trump the provision in Article 1(2) of ICERD.
This consideration applies a fortiori to any measures favouring settlers who are present in the
OPT illegally, in breach of Article 49(6) of the Fourth Geneva Convention.783 Any attempt to justify
measures favouring settlers (qua Israeli citizens) on the basis of Article 1(2) of ICERD could only be
an abuse of right (abus de droit).784 Acting to consolidate the presence of settlers is not simply the
pursuit of an improper purpose, it is the pursuit of an illegal purpose, and moreover one pursued
knowingly from the start of the settlement process. In September 1967, legal counsel to the Israeli
Foreign Ministry, Theodore Meron, advised the Israeli government that the creation of settlements in
the occupied territories would breach the prohibition contained in Article 49 of the Fourth Geneva
Convention, which, moreover, was:
categorical and is not conditioned on the motives or purposes of the transfer, and is aimed at
preventing colonization of conquered territory by citizens of the conquering State.785
Finally, the argument that discriminatory treatment of Palestinians in the OPT is not racially
motivated but is based purely on citizenship is tautological. Under Israeli law, Palestinian refugees
from within the Green Line and living in the OPT would not be prevented from returning to Israel and
obtaining Israeli citizenship if they were Jews. CERD has expressed concern precisely with the case
of long-term residents who are denied citizenship on the grounds of their race, ethnicity or descent
group, as noted earlier. Regarding ‘access to citizenship’, CERD recommends that States:
ecognise that deprivation of citizenship on the basis of race, colour, descent, or national or
ethnic origin is a breach of States parties' obligations to ensure non-discriminatory enjoyment
of the right to nationality;786
781 Hans-Peter Gasser, ‘Protection of the civilian population’, in Dieter Fleck (ed.), The handbook of
humanitarian law in armed conflicts (Oxford: Oxford University Press, 1995), p. 255, para. 547(4).
782 Gasser, Civilian population, p. 256, para. 548(2), emphasis added.
783 The illegality of settlements, and thus of the presence of settlers, was a unanimous finding of the
International Court in the Consequences of a wall advisory opinion: see the opinion of the Court, ICJ Rep, 2004,
183, para.120, and the Declaration of Judge Buergenthal, 244, para.9.
784 ‘A State or person acts in bad faith where it abuses its rights—by pursuing an improper purpose, taking an
account of an irrelevant factor, or acting unreasonably—and does so knowing that it is abusing its rights’:
Taylor, Abuse of rights, p. 333.
785 See G. Gorenberg, The accidental empire: Israel and the birth of the settlements, 1967-1977 (New York:
Henry Holt, 2006), pp. 99-102: quotation from Meron’s opinion at 101.
786 Ibid, paragraph 14,
166 | THE PROHIBITION OF APARTHEID CHAPTER IV
Deprivation of citizenship arises in the present study in the context of Article 2(c) of the Apartheid
Convention concerning the ‘right to a nationality’. 787
Finally, it is significant to the question of citizenship that the Apartheid Convention defines the crime
of apartheid in reference to ‘southern Africa’ and not only South Africa. This inclusive terminology
reflected the practice of South Africa in extending apartheid practices into South West Africa (now
Namibia), which South Africa had held under a League of Nations mandate and refused to relinquish
after World War II. Thus through the 1960s, when the United Nations bodies condemned South
Africa for extending its doctrine of apartheid into South West Africa,788 and in 1973, when the
Apartheid Convention was adopted with language referring to ‘southern Africa’, South West Africa
was not officially annexed to South Africa and its population did not hold South African citizenship.
UN condemnation of South Africa for apartheid practices outside its sovereign territory and in respect
to non-citizens is a legal precedent for applying the Apartheid Convention to Israel’s practices in the
OPT, where Israel similarly exercises jurisdiction but not sovereignty.
(I) B.5. Domination as the Purpose of Policy
As noted in Part I(A) of this chapter, both the Apartheid Convention and the Rome Statute define acts
of apartheid as being committed, respectively, for the purpose of or with the intention of maintaining
domination and systematic oppression by one racial group over another. It could be argued that Israeli
practices are not intended to maintain a relation of Jewish domination over Palestinians in the OPT,
comparable, for instance, to white dominion over blacks in South Africa, but are only temporary
measures to keep order, imposed on Israel by circumstances of conflict, until a peace agreement
removes the need for domination. In other words, domination might not be the ‘purpose’ of Israeli
policy, but only the means to an end, which is not domination but ultimately the exclusion of
Palestinians from Israeli authority and responsibility. According to this argument, any system of
domination over the Palestinians as a group in the interim is only to defend Israel from an exogenous
security threat.
‘Interim’ measures of domination, irrespective of their ultimate goal, still constitute domination as
prohibited by the international legal definition of apartheid. The ‘Grand Apartheid’ strategy in South
Africa reflected this formulation. After the 1960s, the apartheid regime in South Africa sought to
resolve the political problems arising from its policy of racial domination by establishing black
Homelands and forcibly transferring the black population out of white areas into the Homeland
territories where, it was proposed, black ‘nations’ would become self-governing and ultimately
independent (see Section G.2 in this chapter). This goal of ultimate exclusion, which would
supposedly end long-term domination, was not held by international law to absolve the apartheid
government of its international responsibility for eliminating its system of racial domination.
This precedent indicates that Article 2 the Apartheid Convention is not concerned with any potential
ultimate goals of a policy of domination and oppression. Rather, it is concerned with inhuman acts
committed for the purpose of establishing or maintaining a system of domination and oppression by
one racial group over another. Part II of this chapter will review Israel’s practices in the OPT to assess
whether the inhuman acts prohibited by the Apartheid Convention are being committed, and, if so,
whether in isolation or as part of a system of domination over Palestinians in the OPT.
787 Ibid, paragraph 14,
788 For example, GA Res. 2074 (XX) of 17 December 1965 and GA Resolution 2145 (XXI) Question of South
West Africa (1966).
CHAPTER IV PROHIBITION OF APARTHEID | 167
(I) C. Application of the Apartheid Convention outside southern Africa
The Apartheid Convention takes its inspiration from apartheid South Africa not only in adopting the
term ‘apartheid’ but in defining the ‘crime of apartheid’ in the chapeau of Article 2 as ‘similar policies
and practices of racial segregation and discrimination as practiced in southern Africa’. This phrasing
clearly indicates that the Apartheid Convention can be applied outside southern Africa, but it could
also be interpreted to indicate that apartheid in southern Africa provides the precise and unique
template or model by which all other potential regimes are to be tested for apartheid.
This interpretation would be incorrect. Because an occurrence of apartheid outside of southern Africa
will inevitably present unique features, reflecting local histories and social particularities, limiting the
Apartheid Convention’s application too closely to practices of the South Africa apartheid regime
could effectively exclude any other case from qualifying as a ‘crime of apartheid’. Acts in potential
violation of international law are correctly measured against the provisions of the legal instruments
drafted to address them; other cases where their violation occurred are illustrative. This interpretation
of apartheid is supported by the Committee on the Elimination of Racial Discrimination, which
observed in General Comment 19, paragraph 1: