Swedish government funds anti-Semitic NGOs

[shira]

The article in Swedish newspaper Aftonbladet accusing Israeli soldiers of stealing and selling the organs of Palestinians is not a surprise or isolated aberration, but rather the result of a long campaign of anti-Israeli demonization, based on manufactured "evidence" repeated by Palestinian "eyewitnesses".

Applying the strategy adopted at the NGO forum of the 2001 UN Durban conference, the well-financed network of radical non-governmental organizations (NGOs) plays a major role in this demonization, and the Swedish government is a major source of funding. Expressions of modern anti-Semitism and blood libels are the logical results of this activity.

An NGO Monitor research report on Swedish government funding, published on June 29 2009, documented this pattern in detail, and warned of the incitement and anti-Semitic language being used routinely by these organizations. This systematic study examined over 20 major NGOs funded through the Swedish International Development Cooperation Agency (SIDA), Diakonia, the multi-national NGO Development Center (NDC), and the Swedish Mission Council (SMR).

Many of these NGOs routinely accuse Israel of "genocide," "ethnic cleansing," and "apartheid," and some compare Israeli military and political officials to Nazis. This propaganda warfare is waged through the façade of "research" reports which routinely quote Palestinian "testimonies," taken and repeated without question. The path from this demonization to the blood libels of Aftonbladet is short and direct.

more...

http://www.jpost.com/servlet/Satellite?cid=1249418642826&pagename=JPost%2FJPArticle%2FShowFull

[FarrenH]

1. Base on the provided described in the article, the headline is a flat out lie

I call Israeli Apartheid "Apartheid". Does that make me an anti-semite? Give me a fucking break.

[shira]

2. so the question is: are you able to distinguish between valid criticism and demonization of Israel?

[FarrenH]

3. I'm able to distinguish between them and more than that

I'm able to distinguish between demonizating a state's policies and demonizing an ethnic group.

In fact demonization often proceeds from exasperation when valid criticism is ignored or dismissed too routinely.

Israel practices a form of Apartheid. That is not a facile analysis. It is a logical extrapolation from uncontested facts on the ground and in international law: http://www.hsrc.ac.za/Document-3227.phtml">Human Sciences Research Council: Colonialism, Occupation and Apartheid.

Former black opponents of Apartheid in my own country, where I grew up under Apartheid (and hence recognise both its close cousins and the disingenious reasoning used to defend it), have called the situation in Palestine "worse than Apartheid". And these aren't simply drive-by tourists, but people who have spent substantial time in the occupied territories and Israel apprising themselves of the facts.

The fact that the linked article repeatedly uses the very use of the word "Apartheid" as evidence of anti-semitism immediately calls the reasoning of the author into question.

[shira]

4. apartheid is a lazy and disingenuous label, considering Israeli-Arab relations within Israel...

....and Arab life in Gaza (neither of which is remotely close to apartheid). Occupation based on legitimate national security concerns isn't defacto apartheid, no matter how badly you want to label it that way. And for every nitwit you want to cite claiming Israel practices apartheid, there's always a Benjamin Pogrund who will dispute it.

The apartheid label is but another in a long line of accusations to delegitimize and unfairly demonize the entire state of Israel.

Lastly, if what was practiced in Gaza before the 2005 withdrawal was apartheid, then what has transpired SINCE then is worse than apartheid, wouldn't you say? And THAT is what you are advocating should happen in the W.Bank as well - a policy that will result in a situation worse than apartheid.

[FarrenH]

5. The accusation is not that Israel practises Apartheid in Israel proper

only that it has implemented Apartheid in the West Bank. I've said this over and over again. To you, specifically. Above and beyond that the linked study provided specifically analyses Israel's engagement in the West Bank.

Its like talking to a brick wall. There appears to be no ability to absorb any new information or properly comprehend the arguments of critics among several of Israel's staunch defenders here. Hence the feeling sometimes that I'm dealing with propagandists, not people with any sincere interest in discussing the I/P conflict.

[Kurska]

6. Really you don't think the restrictions have to do with security and not rascism?

Wouldn't that assertion be supported by the fact that Israel doesn't implement restrictive laws in peaceful areas?

[FarrenH]

7. That assertion is entirely refuted by the settlements

In any event Apartheid's architects denied racism as a motive too. Apartheid was racist, but it wasn't intended to simply be an expression of racism (although its architects were racist). It was about securing resources (land, labour) for a privileged group. That is exactly analogous to what is happening the West Bank. And yes, most settlers are coincidentally racists too.

Israeli Apartheid is fundamentally racist. It factually treats Palestinian rights and interests as being subordinate to Israeli rights and interests. It actively seeks to preserve an Jewish ethnic majority in Israel, hence the refusal to embrace a one-state solution. It displaces Palestinians to make way for what are for the most part exclusively Jewish settlements. That is textbook racism.

[Kurska]

8. I'm not even going to attempt a conversation if you think the occupation is about resources.

You think Israel inspires the ire of the arab world and puts itself in continual danger for the few reasources of the west bank?

[FarrenH]

9. You cannot comprehend that land and fresh water are precious resources for a tiny state?

If you're not going to attempt further conversation because you cannot comprehend facts that are obvious to my 13-year-old nephew, I pity you. A state who's only concern is security does not facilitate the transfer of its own civilians into permanent settlements in an occupied territory. That's ridiculous on its face. Every single other instance of such action in history is called colonisation, and Israel is no exception. Why don't you do yourself a favour and read the very thorough analysis provided by the Human Sciences Research council provided in my earlier post.

[Kurska]

10. A 13 year might also still believe in the easter bunny.

The settlements are mostly a civilian enterprise that receives oft limited support from the government.

Please continue to act as if the only difference between you and the opposition is that you're learned on the conflict and the other ignorant, it it most certainly the way to win the debate. That attitude being exactly why I see no reason to continue this conversation with you anymore.

[FarrenH]

11. Oft limited support?

Military protection? Exclusive roads? An entire infrastructure designed to sustain them and protect them from the legitimately aggrieved natives? LOL

If you're wondering about my attitude it stems from the fact that the arguments being presented to me are so cretinous and the magnitude of wrong so large that I have no respect for people defending it.

Back when I was living the privileged life under Apartheid, I didn't mind people engaging in sometimes polemical dialog with SA Apartheids defenders because I knew there weren't really two sides to the story. Faux-balance on criminal enterprises of that magnitude causes people to suffer while fence-sitters dissemble. Then, as now, I had nothing but scorn for the likes of Reagan and Thatcher, who called Mandela a "terrorist".

I'll engage, certainly, and unlike Shira who I've told about 20 fucking times that I'm talking about the West Bank and not Israel proper, I will listen and respond with facts and reason to what is put in front of me. But I will do so with the minimum amount of civility demanded by message board rules, because support for Israeli Apartheid based on obscuration of the facts and deception while people are oppressed and dispossessed by it frankly sickens me.

[Kurska]

12. Military protections for civilian and security measures for a violent region.

Who could believe it!

but here have the last word, I'm not interested in continuing this.

[FarrenH]

13. You're obviously wiser and have greater insight than the

the drafters of the Geneva Conventions or the UN definition of the Crime of Apartheid, since your spin contradicts the legal status of the settlements and the occupation and all that that implies. But hey, who gives a damn about facts on the ground, international humanitarian law and the opinions of International jurists who took years drafting the above study which you no doubt didn't bother to read. You've got an Opinion! Which just happens to coincide with official Israeli spin! Good for you.

You know what's really funny listening to this horse-puckey as a South African and long time opponent of Apartheid? If you spoke to any government representative in SA in the 80's, their official position was that Apartheid wasn't about resources or racial supremacy at all. Rather, it was simply a policy of "seperate development" and the rolling states of emergency required to maintain it was simply about "security". The parallels are amazing.

[shaayecanaan]

23. ???

"The settlements are mostly a civilian enterprise that receives oft limited support from the government."

That is quite an absurd assertion.

[shira]

15. it's not apartheid - are liberal S.Africans like Ben Pogrund "brickwall" idiots for saying it's not?

I notice you have nothing to say about your version of 'apartheid' ending in Gaza and resulting in a situation WORSE than 'apartheid' ever since. Is that what you wish for the W.Bank, a situation like Gaza that will also be worse than what you claim - not Pogrund - as apartheid?

You brought up exclusive roads and used that as an example of your apartheid analogy - you realize those roads are NOT jew-only roads but israeli-only roads, meaning ANY israeli with israeli license plates can use those exclusive roads - including close to 20% of israelis who are arabs? how exactly does that buttress your view that israel practices apartheid in the territories since israeli (palestinian) arabs can use those roads and they're NOT exclusively jewish? Israeli-only roads are a REFUTATION to your view that it's apartheid and shows clearly that this is a national struggle unrelated to race.

In fact - let's imagine Israeli Arabs wish to move to any of the settlement areas. What law or precedent exists that would NOT allow Israeli arabs the right to live in settlements if that's what they wished? Are there ANY examples of Israeli Arabs being turned down from wanting to live in settlements, because if so then THAT would really bolster your argument - otherwise it's proof your argument is complete bullshit. Sure - they may not wish to be settlers but neither are they forbidden from joining Jews in those settlements if that's what they want to do. So how's that apartheid?

=========

ETA:

Are you against Jews who wish to own their own property and live in East Jerusalem? Just wondering.

[FarrenH]

42. Lets start with Gaza

1) Since it has been under permanent, crippling military blockade since the withdrawal I will not accept it as a legitimate example of how things would turn out in a state not thus shackled.

2) Since it was a unilateral withdrawal that did not meet even a fraction of the concessions required for justice for the Palestinian people, I will not view it in isolation, as you seemed pleased to. Especially since the withdrawal was attended by settlement expansion elsewhere.

3) Since Hamas is a monster that has been nurtured by Israel itself in the past, in an attempt to divide Palestinian loyalties against a more secular movement (and this from the mouth of a former Israeli general), I am not sympathetic to the idea that it is simply Palestinians showing their true colors, which in turn makes me inclined to decline your counterfactual.

4) Since Hamas presently trails far behind Fatah in polls, I do not accept your counterfactual suggestion that Hamas-like rule is inevitable for a justly served, settler-free Palestinian state.

So, frankly, I find your entire counterfactual construction, stated as always as if it were fact and you are clarevoyant, devoid of reasonable assumptions or logic.

Now to the issue of Israeli Arabs. I have stated, on numerous occasions, that the presence and status of Israeli Arabs modifies the charge of Apartheid only slightly. It is a fact that extraordinary measures, including legal measures, are in place to restrict the Arab minority from ever becoming a majority. It is a fact that Israel is occupying a territory and is progressively claiming increasing amounts of land from that territory, without accepting the Palestinian residents of that territory into its citizenry. It is a fact that the reason they will not simply annex the entire territory and give those residents political representation is that they wish to preserve the Jewish nature of the state.

Taken together, these facts mean that Israel, a state premised on being a majority homeland for people of a single ethnicity, has erected an architecture of seperation and oppression with the express purpose of both taking resources from another ethnic group in an illegal fashion and denying them the political representation in the state doing the taking that is required to change that. Its the very definition of Apartheid. Its just a slightly mutated form. In light of the facts, Israel's non-Jewish Arabs are equivalent to the tiny number of people of color who held "honorary white" status under Apartheid, for a variety of reasons.

And frankly I don't give a crap what white South African liberals say if they're wrong.

[shira]

43. thanks for the response - before I reply, how about the Israeli only roads in the W.Bank?

Doesn't that prove your apartheid claims to be hollow, since any Arab driving through the W.Bank with Israeli tags can drive on these roads?

[FarrenH]

44. No

Not if they are part of a privileged minority of the ethnic group being seperated and discriminated against, rather than being representative of most. That's just Apartheid-with-exceptions. BTW, South African Apartheid also had exceptions. So its really just Apartheid.

[shira]

45. the exceptions being ALL israeli arabs who can drive through the W.Bank if they have Israeli tags?

all israeli arabs are exceptions as opposed to W.Bank arabs - it has nothing to do with nationality but only race?

[FarrenH]

47. Israel will not agree to a one state solution

because it will dilute the Jewish ethnic majority. They will not allow Palestinians who marry Israelis to become Israeli citizens because it will dilute the Jewish ethnic majority. They will not agree to a Palestinian right of return because it will dilute the Jewish majority. It has everything to do with ethnicity. Again, an Arab MINORITY with equal rights in a country with a host of legal and other efforts to keep them a MINORITY, while it does everything possible to incrementally annex land from the same ethnic group in an occupied territory, WITHOUT making those people full and equal citizens, doesn't obviate that. That majority also ensures, in a democracy without the kind of accomodations that Lebanon has, that a single ethnic group holds political power and, in Israel's case, wields it to exclude, dispossess, and seperate most members of another ethnic group in territory under its control. By definition, that. Is. Apartheid.

It is only marginally less discriminatory than South African Apartheid on paper and - here's the kicker - significantly more discriminatory in practise in the occupied territories, according to every South African observer from a formerly oppressed ethnic group

[shira]

48. Israel-only roads that all Israeli Arabs can access is proof against apartheid, isn't it?

please be honest and answer that one first.

As to the rest of your latest post...

Israel will not agree to a one state solution because it will dilute the Jewish ethnic majority.

You know this is the reason.....how? Maybe their motive is based on one-state solutions that have failed miserably in Czechoslovakia, Yugoslavia, India, and in nearby Lebanon? Seems a better reason than your assertion.

They will not allow Palestinians who marry Israelis to become Israeli citizens because it will dilute the Jewish ethnic majority.

Again, you know this because.......? Maybe it has something to do with national security? Imagine the military leaders of Hamas, maybe Arafat, Dahlan, etc...marrying Israeli Arabs. They should then all become Israeli citizens with full rights? Are you serious?

They will not agree to a Palestinian right of return because it will dilute the Jewish majority. It has everything to do with ethnicity.

And you know this is the motive.....how? It has nothing to do with your first point about a one-state solution?

[FarrenH]

49. Lol

There's an air of desperate cognitive dissonance to your replies now. Since you haven't introduced anything that really addresses the prima facie evidence of Apartheid stipulated, I'll abandon this line of discussion, have fun.

[shira]

50. what? the desperation is all yours - Israeli only roads that Arabs can utilize is one great ....

refutation to the apartheid claim, but now that you brought it up, the fact that Israeli Arabs can marry Canadian or American Arabs who can then come to Israel to live as citizens is yet ANOTHER refutation of your simplistic and absurd reductionist view.

It's a nationalist struggle unrelated to race.

Give it up already.

ETA:

Look up the plight of Sudanese refugees and how they have been taken in by Israel. You realize that Israel taking in black Arab refugees is yet another refutation of your simplistic and defamatory position regarding Israel's alleged racism?

:eyes:

[FarrenH]

51. Only because you misunderstand the charge

I provided you with a well-researched study detailing why what Israel is engaging in is Apartheid. You clearly haven't read it and have no interest in its contents.

If you think selective ethnic discrimination isn't discrimination simply because its selective, you need to re-learn the meaning of a few words. You're attacking a straw man.

And if you think racking up a post count on DU is winning over people to your pro-Apartheid stance, it isn't. Israel is increasingly seen as a pariah state and that is rightly translating into more and more boycotts. Sorry Shira, the propaganda isn't working.

[shira]

52. your claim about Israeli apartheid based on racism is nothing but rubbish

If Israel is racist against Arabs and it is this racism that is the primary reason behind what you believe to be apartheid in the W.Bank, how do you explain:

a) Israeli only roads that all Israeli Arabs can utilize in the W.Bank
b) Israeli citizens who marry Canadian, British, American, or Australian Arabs who can then become citizens in Israel
c) Sudanese Arab refugees taken in by Israel

It's not racism against Arabs, now is it? Neither is it 'selective', is it? It's nationalist and unrelated to race, isn't it?

Perhaps you'd like to modify your position now and claim it's still apartheid, but NOT based on (selective) racism against Arabs? Or that it's only Palestinian Arabs (not all Arabs) who are discriminated against - and only if they live outside of Israel?

When you answer perhaps THEN we can move on....

:)

[FarrenH]

53. There is an international definition of the crime of Apartheid

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.
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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.
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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:

[FarrenH]

54. ...

Apartheid Convention, state representatives admitted
that its terms could apply beyond the geographical limits of southern Africa.792 In the words of the
Cypriot delegate: “When drafting and adopting such an international convention, it must be
remembered that it would become part of the body of international law and might last beyond the time
when apartheid was being practiced in South Africa.’793
That the drafters of the Apartheid Convention intended that it supply a self-standing and universal
human rights instrument can be read literally in Article I:
789 Committee on the Elimination of Racial Discrimination, General Recommendation No. 19: Racial
segregation and apartheid (Art. 3), 18 August 1995.
790 Roger S. Clark, ‘Apartheid’, in M. Cherif Bassiouni, International Criminal Law, Volume I, 1999, 643, pp.
643-644.
791 See, for example, Ilias Bantekas and Susan Nash, International Criminal Law, Second Edition, (Cavendish,
2003), pp. 121-122.
792 See the statement by Mr. Wiggins (United States of America), UN General Assembly, Official Records, 28th
Session, 1973, 3rd and 4th Committees, 2003rd meeting, 22 October 1973, Agenda Item 53, Draft Convention on
the Suppression and Punishment of the Crime of Apartheid (continued) (A/9003 and Corr.1, chaps XXIII, sect.
A.2, A/9095 and Add.1), p. 142, para. 36. (“Article I would be open to very broad interpretations going beyond
both the intentions of its drafters and the geographical limits of southern Africa.”). See also the statement by Mr.
Petherbridge (Australia) at p. 143, para. 4. (“…the concept of apartheid was being widened to such an extent
that it could be applicable to areas other than South Africa.”) The additional words “as practised in southern
Africa” inserted into Article 2 was first suggested by Mrs. Warzazi (Morocco) at the 2005th meeting, 24 October
1973, p. 150, para. 12.
793 See the statement by Mr. Papademas (Cyprus), ibid, pp. 142-143, para. 39.
168 | THE PROHIBITION OF APARTHEID CHAPTER IV
The States Parties to the present Convention declare that apartheid is a crime against
humanity and that inhuman acts resulting from the policies and practices of apartheid and
similar policies and practices of racial segregation and discrimination, as defined in Article 2
of the Convention, 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.
Reference to practices by the South African apartheid regime nonetheless proved useful to this study
by providing some indication of what the international community sought to prohibit in adopting the
Apartheid Convention. Reference to South Africa is therefore treated here as a comparative case
useful to illuminating possible practices that fall within the ambit of the Apartheid Convention. Some
differences in doctrine and practice distinguish the two cases: for instance, apartheid in South Africa
entailed the legislation of racial micro-differences in ways not seen in Israeli discourse and the
adjudication of group identities was accomplished differently. Other features, such as laws that
provide privileged access to land by one group to the exclusion of others, are similar.
(II) D. Apartheid in South Africa: Legislative Foundations
Apartheid in South Africa established the State as the state of the white population exclusively by
prohibiting black South Africans from having any voice in its governance. The policy of apartheid
(Afrikaans for ‘separateness’, sometimes discussed as ‘separate development’) was adopted by the
white Afrikaner nationalists who came to power in South Africa with the election victory of the
National Party in 1948. Apartheid was designed Black South Africans were to be granted ‘selfgovernment’
over a number of isolated and ethnically based ‘homelands’, while the rest of the country
was to remain the exclusive preserve of white South Africans. Mokgethi Motlhabi points out that:
Although the word ‘apartheid’ means (race) separation, it is often distinguished by Afrikaner
writers from segregation, which has always been the norm of race relations in South Africa
and was guaranteed by a pass system for Africans, first introduced by the British in 1809. For
the Afrikaner segregation, as opposed to apartheid, did not go far enough. It still offered
Black people some hope, according to them, that through education and adequate assimilation
of Western civilization they could become equals of whites and finally have a share in the
government of the country. Apartheid not only did away with such ‘false hopes’, but went
further to ‘retribalize’ black people by emphasizing their ethnic differences, separating them
residentially on this basis. As a result of this policy, most of the Africans would be resettled
in their supposed homelands, visiting ‘white South Africa’ only as ‘migrant’ workers.794
Soon after coming to power’,795 the National Party introduced a series of apartheid laws796 in order to
implement its vision of a white South Africa serviced by black migrant workers. The three legislative
foundations underpinning the apartheid system were the Population Registration Act 30 of 1950, the
Group Areas Act 41 of 1950, and the Pass Laws, which included several acts. Even though other
legislation was to follow (discussed below), these statutes formed the bedrock of the apartheid state
and sparked the Defiance Campaign of 1952, which in turn resulted in the arrest of thousands of
South Africans who had taken part in the campaign and the banning of many of their leaders.797
794 Mokgethi Motlhabi, The Theory and Practice of black Resistance to Apartheid – A Social-Ethical Analysis
(Johannesburg: Skotaville Publishers, 1984), p. xvii.
795 The National Party came to power in 1948 under the leadership of Dr. D. F. Malan. In 1954 Malan was
succeeded as leader of the National Party by J. G. Strijdom, who in 1958 was replaced by Dr. H. F. Verwoerd.
These three Afrikaner nationalist leaders are generally regarded as the prime architects of the policy of
apartheid.
796 Described by Brian Bunting in his book, The Rise of the South African Reich (Harmondsworth: Penguin,
1964) as ‘South Africa’s Nuremberg Laws.’
797 Roger Omond, The Apartheid Handbook, p. 16.
CHAPTER IV PROHIBITION OF APARTHEID | 169
Sporadic violence and protests continued throughout the 1950s, culminating in the Sharpeville
massacre of 1960 when police shot dead 69 people who were protesting against the infamous pass
laws. A state of emergency was declared and the Unlawful Organisations Act was passed, outlawing
the African National Congress (ANC) and the Pan Africanist Congress (PAC). In terms of this Act,
those found guilty of furthering the aims of either of these two organisations could be convicted and
sentenced to up to ten years imprisonment. Both the ANC and the PAC went underground and took
up arms against the apartheid government. Dan O’Meara paints the following portrait of apartheid
South Africa during the 1960s:
This was perhaps the bleakest period in South Africa’s dismal history. The relentless,
paranoid witch hunt for perceived enemies, the morally-blind and fanatical implementation of
the smallest details of apartheid, the Mother Grundy censorship, and the imposition of
fundamentalist Calvinist values on the broader society, all conspired to reinforce the most
mean-spirited, petty-minded and ignorant parochial philistinism in public and intellectual life.
These were years when Black Beauty was banned as subversive literature; when ‘swimming
on Sundays’ was condemned as a moral outrage; when prominent theologians could seriously
claim that the devastating drought of 1966 was God’s punishment for the fact that white
women had adopted the miniskirt; when the whole society thrilled to salacious (and frequent)
newspaper reports of the prosecution under the Immorality Act of pro-apartheid Dutch
Reformed Church clerics, and thousands of other white males, who had slept with black
women.798
The Black Consciousness movement, led by Steve Biko, emerged in the late 1960s and contributed to
the Soweto uprising which began on 16 June 1976. The uprising started as a protest by
schoolchildren against the compulsory use of Afrikaans as a medium of instruction in African schools,
before retaliatory state repression engulfed the entire country in a wave of violent anti-apartheid
protests. Hundreds of protesters were killed and imprisoned, and many others fled into exile.
Violence and unrest continued throughout the 1980s, during which the apartheid regime declared
successive states of emergency and ultimately adopted a ‘total strategy’ to resist what it called a ‘total
onslaught’ from anti-apartheid forces.
Finally, facing ungovernable mass protests and a failing national economy, in 1991 the last white
nationalist President of South Africa, W. A. de Klerk, announced the unbanning of the anti-apartheid
political movements, and the release of their leaders, including Nelson Mandela, the leader of the
ANC. The formal edifice of apartheid ended with the passing of South Africa’s Interim Constitution
of 1994, which paved the way for the country’s first democratic election and the inauguration of
Nelson Mandela as South Africa’s first black president on 10 May 1995.
The apartheid legal system did not emerge fully formed when the Nationalist Party came to power in
South Africa in 1948. It was preceded by almost three hundred years of colonial oppression, which
dispossessed black South Africans of their land, their rights, their political systems and authority, and
their human dignity. Key segregation laws that established the legal foundation for apartheid were
indeed passed long before the Nationalist Party took power in 1948.799 The most significant of these
were the Natives Land Act, No 27 of 1913 and the Natives (Urban Areas) Act of 1923. The 1913 Act
made it illegal for blacks to purchase or lease land from whites except in reserves and thus restricted
black occupancy to less than 8 percent of South Africa's land.800 In the Apartheid era, the reserves
were converted into Bantustans (Bantu Homelands) and several were later declared 'independent'
states within South Africa.801
798 Dan O’Meara, Forty Lost Years – The Apartheid State and the Politics of the National Party 1948-1994
(Randburg: Ravan Press, 1996), p. 110.
799 TRC Report, Vol. 1, CAP 2, para 6.
800 The Cape was the only province excluded from the Act as a result of the existing black franchise rights that
were enshrined in the South Africa Act.
801 The Native Land Act was repealed by the Abolition of Racially Based Land Measures Act (No. 108) of 1991.
170 | THE PROHIBITION OF APARTHEID CHAPTER IV
The Natives (Urban Areas) Act of 1923 laid the foundations for residential segregation in urban areas.
The Act divided South Africa into 'prescribed' (urban) and 'non-prescribed' (rural) areas, and strictly
controlled the movement of black males between the two. Each local authority was made responsible
for the blacks in its area and 'Native advisory boards' were set up to regulate the inflow of black
workers and to order the removal of 'surplus' blacks (those not employed). As a result, towns became
almost exclusively white. Only domestic workers were allowed to live in towns. The 1923 Act was
superseded by the Native (Urban Areas) Consolidation Act No 25 of 1945, which was repealed by the
Abolition of Influx Control Act No 68 of 1986.
After 1948, the legal system underpinning apartheid evolved to meet changing conditions and rising
resistance and came to penetrate every aspect of South African life, until its eventual demise with the
emergence of a democratic South Africa in 1994. Segregation was systematically formalized by the
National Party through a complex amalgam of legislation.802 The legal foundations of the system
were the Population Registration Act 30 of 1950, the Group Areas Act 41 of 1950 and the Pass Laws.
The Population Registration Act of 1950 established that all South Africans must be categorised on
the basis of race and carry at all times a card that stipulated their racial group. The Group Areas Act of
1950 partitioned the country into different geographic areas allocated to each racial group. The Pass
Laws then restricted people to their assigned area by restricting or prohibiting their entering any area
not assigned to their group. Resistance to this system was ruthlessly suppressed.
A fuller picture of the statutes passed by the apartheid Parliament, here in chronological order,
demonstrates the breadth of legalization for discriminating on the basis of race:

The Suppression of Communism Act of 1950 banned the South African Communist Party as
well as any other party that the government chose to label as 'communist’. It made membership
in the SACP punishable by up to ten years imprisonment.

The Riotous Assemblies Act of 1956 prohibited disorderly gatherings.

The Unlawful Organisations Act of 1960 outlawed organisations that were deemed threatening
to the government.

The Sabotage Act was passed 1962, the General Law Amendment Act in 1966, the Terrorism
Act in 1967 and the Internal Security Act in 1976.

The Bantu Authorities Act of 1951 created separate government structures for blacks. It was the
first piece of legislation established to support the government's plan of separate development
in the Bantustans.

The Prevention of Illegal Squatting Act of 1951 allowed the government to demolish black
shack-land slums.

The Native Building Workers Act and Native Services Levy of 1951 forced white employers to
pay for the construction of housing for black workers recognized as legal residents in 'white'
cities.

The Reservation of Separate Amenities Act of 1953 prohibited people of different races from
using the same public amenities, such as restaurants, public swimming pools, and restrooms

The Bantu Education Act of 1953 crafted a separate and inferior didactic scheme for African
students under the aegis of the Department of ‘Bantu’ Education.

The Bantu Urban Areas Act of 1954 curtailed black migration to cities.

The Mines and Work Act of 1956 formalised racial discrimination in employment

The Promotion of Black Self-Government Act of 1958 entrenched the NP's policy of separate
development. It set up separate territorial governments in the ‘homelands’, designated lands for
802 TRC Report, Vol. 1, CAP 2, paras. 22-24
CHAPTER IV PROHIBITION OF APARTHEID | 171
black people where they could have a vote. The map of South Africa thus had a white centre
with a cluster of black states along its borders.

The Bantu Investment Corporation Act of 1959 set up a mechanism to transfer capital to the
homelands in order to create employment there.

The Extension of University Education Act of 1959 created separate and ultimately inferior
universities for blacks, coloureds and Indians. Under this act, existing universities were not
permitted to enrol new black students.

The Physical Planning and Utilisation of Resources Act of 1967 allowed the government to
stop industrial development that employed black labour in 'white' areas and redirect such
development to homeland border areas.

The Black Homeland Citizenship Act of 1970 changed the status of the inhabitants of the black
Homelands so that they were no longer citizens of South Africa.

The Afrikaans Medium Decree of 1974 required the use of Afrikaans and English on a fiftyfifty
basis in high schools outside the homelands.
Select examples of this legislation will be discussed where relevant throughout the following review
of specific practices of apartheid South Africa below, which is intended to inform and provide
historical precedent for the review of Israel's practices in the OPT vis-à-vis the individual acts of
apartheid detailed in Article 2 of the Apartheid Convention.
172 | THE PROHIBITION OF APARTHEID CHAPTER IV
PART II: REVIEW OF ISRAELI PRACTICES IN THE OPT
(II) A. Introduction
This chapter now reviews Israel’s practices in the OPT as they relate to the definition of apartheid as
formulated in Article 2 of the International Convention on the Suppression and Punishment of the
Crime of Apartheid (henceforth ‘Apartheid Convention’). With the Apartheid Convention as a
guiding framework, this chapter also takes account of the definition of apartheid drawn from Articles
7(1) and (2) of the Rome Statute, along with the acts of racial discrimination prohibited by Article 5
of ICERD. The latter provides an array of conventional norms by which Israel is bound, and which
may fall within the prohibition of apartheid when committed as part of an institutionalised system of
racial discrimination and oppression by a dominant racial group. The specific acts criminalised in the
Apartheid Convention and the Rome Statute (murder, torture, etc) and prohibited by ICERD do not
define the practice of apartheid; but, rather, are its most severe manifestations.
Each practice defined by the Apartheid Convention as an act of apartheid when part of an overall
system of racial domination is addressed here in three parts: (1) the meaning of the provision of the
Apartheid Convention and corresponding provisions of ICERD and the Rome Statute; (2) a short
review of relevant laws, policies, and practices in apartheid South Africa; and (3) a discussion of
relevant Israeli practices in the OPT. As commentary on the Apartheid Convention is scant,
discussion of the provisions’ meaning is drawn principally from international human rights and
humanitarian law. Discussion of apartheid practices and policies in South Africa draws principally
from the 1998 report of South Africa’s Truth and Reconciliation Commission (TRC), which provides
a concise and authoritative assessment. Discussion of Israeli practices and policies and their impact
draws from reports and findings of the United Nations and other international organisations,
jurisprudence of international and domestic courts including the Supreme Court of Israel, scholars of
international law, and Palestinian and Israeli human rights organisations.
(II) B. Article 2(a)(i) – Denial of Right to Life by Murder of Members of a Racial Group
B.1. Interpretation
The formulation of Article 2(a)(i) of the Apartheid Convention is drawn from Article 2 of the
Genocide Convention. However, the relevant provision of the Genocide Convention speaks of
‘killing’ rather than ‘murder’. This distinction is not insignificant. The formulation in the Genocide
Convention does not seem to distinguish between the taking of life sanctioned by law, such as the
death penalty, and killings perpetrated beyond the law. The limitation in Article 2(a)(i) of the
Apartheid Convention to the category of ‘murder’ is thus narrower.
The South African apartheid regime practiced the death penalty, which was often used against
opponents of apartheid, particularly for security-related offences. To the extent that such taking of life
was sanctioned by South African law, and carried out in accordance with due process standards, it
would not amount to ‘murder’ prohibited in this section. The Apartheid Convention’s prohibition
rather relates – where the requisite intention has been established – to state sanctioned extra-judicial
killings of individuals. Such killing also falls under the prohibition in Article 5(b) of ICERD of racial
discrimination in the enjoyment of "the right to security of person and protection by the State against
violence or bodily harm, whether inflicted by government officials or by any individual group or
institution." The crime against humanity of murder as defined by Article 7(2)(h) of the Rome Statute
of the International Criminal Court amounts to an inhumane act of apartheid when perpetrated in the
context of an institutionalized regime of systematic oppression and domination by one racial group
over another.
CHAPTER IV PROHIBITION OF APARTHEID | 173
(II) B.2. Practices in apartheid South Africa
Death became a core weapon used by Apartheid South Africa to secure white domination over blacks
by eliminating its opponents and bringing the rest into submission. ‘Denial of right to life by murder’
included judicial killings that violated due process and extrajudicial killings such as shooting of
demonstrators (such as at Sekhukhune, Pondoland, Sharpeville, and Soweto), murder of detainees in
jail and detention facilities, and targeted assassinations by security agents and hit squads.
The TRC took the view that use of the death penalty during apartheid was integral to maintaining the
apartheid system. Between 1960 and 1994, over 2,500 people were hanged in South Africa.803 Of
these, only one white person – John Harris – was executed for political crimes (bombing) within this
34-year period.804 Hanging of apartheid’s opponents was almost a daily occurrence: during ‘the
Christmas rush of 1988’, 28 people were hanged in one week.805 It emerged before the TRC that 95
per cent of those hanged were black. All of the condemned were sentenced by white (male) judges.
Beyond sanctioned capital punishment, the TRC concluded that the apartheid state sanctioned murder
of its opponents.806 Extrajudicial killings and targeted assassinations of members of the liberation
movement were common. While statistical data is difficult to ascertain on the exact scale of
extrajudicial killings, some indication can be obtained from the amnesty applications before the TRC
which included 114 applications for the killing of 889 people.807 The State Security Council – which
sat atop the National Security management System – initially targeted members of groups designated
as ‘terrorist’ operating outside South Africa. These measures also targeted their supporters and hosts
in cross-border raids that cost thousands of lives. In the tumultuous 1980s, the SSC agents began to
target its enemies within South Africa.808 The murder of people in detention is well documented
(Steve Biko’s death in detention perhaps the most publicised).809
The TRC Report noted that the state's resort to targeted extrajudicial killings was done with the
purpose of suppressing resistance to the apartheid regime. The reason for such recourse was that
unexplained deaths were, by law, followed by an inquest which required access to the body of the
deceased for examination of the cause of death.810 While often such inquests relied on the word of the
police alone, with very little circumspect interrogation, the inquest forum allowed the victim’s
families to appoint counsel to cross-examine police and other witnesses.811 In order to maintain
control of the political circumstances, there was effective ‘condonation and tolerance of extrajudicial
killings, which to a culture of impunity throughout the security forces.’812
The TRC identified that a pattern of targeted killings of political opponents and resistance forces was
established in which such people were abducted, interrogated, and killed. More insidious was that
such persons were held in detention and pressured by various means into providing information on
resistance activities. Once information was gleaned from them, they were killed and never returned
803 TRC Report, Vol. 2, Ch. 3, para. 21.
804 TRC Report, Vol. 2, Ch. 3, para. 27.
805 Testimony of Paula McBride, before TRC: see TRC Report, Vol.4, CAP 2, para. 49.
806 TRC Report, Vol. 1, Ch. 2, para. 80.
807 TRC Report, Vol. 6, Ch. 3, Ch. 1, p. 192.
808 TRC Report Vol. 1, Ch. 2, para. 79.
809 See TRC Report, Vols. 3 and 4.
810 TRC Report Vol. 2, Chap 3, pp. 205-215.
811 TRC Report, Vol. 6, Section 5, Chap 2, p. 627.
812 TRC Report, Vol.6, Section 3, Chap 6, Part 2, p. 509. The Report identifies phrases used in security
documents and Parliamentary speeches which implied killing with impunity of resistance members.
174 | THE PROHIBITION OF APARTHEID CHAPTER IV
home to their families, which resulted in the dual effect of the families not knowing what had
happened to their loved ones and with them being labelled with the stigma of being traitors.813
One of the challenges faced by the TRC in the amnesty proceedings was that authorisation and
command responsibility for extrajudicial killings was often hard to establish, since the rhetoric to kill
political opponents was always extant. What is clear from statistical evidence is that a significant
number of deaths in detention occurred, which is indicative, in part from requests for amnesty for
such killings. The creation of the Civil Co-operation Bureau and Vlakplaas were particular instances
indicative of planned and structured elimination of resistance by whatever means.814 Evident from the
requests for amnesty were the means of extrajudicial killings that occurred. These applications were
categorised by the TRC as (a) abductions followed by killing (deaths in detention, suicides, accidents
and natural causes); (b) assassinations of persons considered to have a high political profile both
inside and outside the country; (c) assassinations of individual MK and Azanian People’s Liberation
Army (APLA) personnel both inside and outside the country, and (d) cross-border raids.815
(II) B.3. Israeli practices in the OPT
Since 1967, thousands of Palestinians in the OPT have been killed by the Israeli military forces in the
name of maintaining Israel's occupation and regime of domination over Palestinians. During the two
intifadas (1987-1993 and 2000 onwards), more than 6,000 Palestinians have been killed by the Israeli
army.816 One form of these killings, which is analogous to practices in apartheid South Africa, stems
from the pattern of excessive use of force against civilian demonstrators protesting Israel practices in
the OPT. Such killings form part of a broader policy of suppression of opposition to the Israeli
occupation and disregard for Palestinian life.817 In accordance with the emphasis placed above on the
Apartheid Convention’s prohibition on state-sanctioned policies of extra-judicial killing, the following
discussion focuses on extra-judicial killing of Palestinians, the most severe manifestation of Israel’s
intent to suppress opposition to the occupation and its practices.
Over the course of the occupation, Israel has engaged in specific forms of killing in the OPT: the
extrajudicial, summary or arbitrary execution818 of Palestinians opposing Israel's regime of occupation
and designated for so doing as ‘terrorists’. The Israeli authorities routinely contend that such extrajudicial
killings are necessary due to difficulties in arresting suspects. However, a common form of
813 TRC Report Volume 6, Section 5, Ch 2, p. 624.
814 TRC Report Vol.6, Section 5, Chap 2, p. 628.
815 TRC Report Vol.6, Section 5, Chap 2, p. 629.
816 For statistics on fatalities during the first and second Intifadas see B’Tselem/ Israeli Information Centre for
Human Rights in the Occupied Territories: http://www.btselem.org/english/Statistics/Index.asp. According to
B'Tselem, the number of Israelis killed by Palestinians during the second Intifada from 29 September 2000 to 30
September 2008 is 490 Israeli civilians and 90 Israeli security forces personnel. See also the Palestinian Centre
for Human Rights–Gaza (PCHR), ‘Statistics related to Al Aqsa Intifada: 29 September, 2000: updated 27
August, 2008’, available at: http://www.pchrgaza.org/alaqsaintifada.html.
817 Palestinian demonstrations against the Wall in the West Bank, for example, are consistently met .1
with excessive and disproportionate use of force by Israeli forces. The village of Ni’lin is one case in point. See,
for example, Al-Haq, Right To Life of Palestinian Children Disregarded in Ni’lin as Israel’s Policy of Wilful
Killing of Civilians Continues (7 August 2008), available at: http://www.alhaq.org/template.php?id=387 .
818 ‘Extrajudicial, summary and arbitrary executions are legal terms used to describe killings which have taken
place in circumstances which contravene international law. See Special Rapporteur of the Commission on
Human Rights on Extrajudicial, Summary or Arbitrary Executions available at:
http://www.unhchr.ch/executions/questionnaire.
CHAPTER IV PROHIBITION OF APARTHEID | 175
killing witnessed in the OPT is the summary execution of Palestinians already under the control of
Israeli agents, who were killed rather than arrested or provided with medical treatment.819
In the early 1990s, the Israeli army and the Border Police established undercover military units in
which soldiers were disguised as Arab civilians (known in Hebrew as Mista’arvim). Their official
mission was to capture ‘wanted’ Palestinians. However, many ‘wanted’ Palestinians who were
supposed to be arrested were in fact assassinated.820 These units operated in conjunction with the
General Security Services (GSS or ISA), and made use of intelligence information.821 Israel
traditionally denied that these undercover units were assassination squads.822
Israel altered its official policy regarding targeted assassinations following the outbreak of the second
intifada in September 2000.823 The Israeli political establishment gave the army ‘a broader license to
liquidate Palestinian terrorists’ and allowed the army ‘to act against known terrorists even if they are
not on the verge of committing a major attack.’824 This policy was reportedly sanctioned by then
Attorney-General, Elyakim Rubinstein,825 and marked the beginning of a period in which Palestinians
suspected of engaging in resistance activities or opposing the regime are extra-judicially
executed as part of Israel’s official security policy.
Assassinations are carried out using guns fired by snipers, missiles fired from combat aircrafts,
ground to ground missiles, tank-fire and explosive devices planted in cars and public telephone
booths. To date, the killings have been carried out under circumstances that suggest a disregard for the
lives of innocent bystanders. They also often occur even when the targeted person could have been
arrested by the Israeli army.826
One such ‘targeted killing’ was that of Salah Mustafa Muhammad Shehadeh, suspected leader of the
Izz ad-Din al-Qassem Brigade, the military wing of Hamas. On 22 July 2002, the Israeli army targeted
the building in which Shehadeh was staying, using a one-ton bomb dropped by an F-16 plane in a
densely populated neighbourhood of Gaza City. Fifteen people were killed, including Shehadeh, his
wife and nine children. Fifty others were injured as a result of the disproportionate attack.827 Other
819 For details of four separate incidents of such extrajudicial and summary executions in the same area in a
short period of time, see Al-Haq, Intervention to Diplomatic Representatives Regarding the Extrajudicial
Executions of Palestinians in the Jenin Area (9 May 2007), available at:
http://www.alhaq.org/etemplate.php?id=312
820 See B’Tselem, Activity of the Undercover Units in the Occupied Territories (May 1992), available at:
http://www.btselem.org/Download/199205_Undercover_Units_Eng.doc; also Middle East Watch, A License to
Kill: Israeli Undercover Operations Against ‘Wanted’ and Masked Palestinians (July 1993).
821 Ibid.
822 Ibid., p. 90.
823 For historical background for the outbreak of the second Intifada, see Baruch Kimmerling, Politicide – Ariel
Sharon’s War Against the Palestinians (London & New York: Verso, 2003), pp. 129-138; also Lies about
Peace, Barak and Sharon War against the Palestinians.
824 Amos Harel and Aluf Benn, ‘Kitchen cabinet okays expansion of liquidation list,’ Ha’aretz, 4 July 2001.
825 See Gideon Alon, ‘Rubinstein backs IDF’s policy of ‘targeted killings’’, Ha’aretz (2 December 2001)
(Hebrew): ‘…The Attorney General added that the term ‘liquidations’ damages Israel’s image and that it is
preferable to use the phrase ‘targeted killings’ to describe the policy. The hits are carried out according to
detailed orders, published by the military prosecutor’s office, and in accordance with international law,
Rubinstein said.’
826 Ibid, pp. 11-12.
827 See Matar v. Dichter, a federal class action lawsuit brought by the Centre for Constitutional Rights (CCR)
and the Palestinian Centre for Human Rights – Gaza against the former Director of Israel’s GSS, Avi Dichter,
charging Dichter with war crimes, extra-judicial killing and other gross human rights violations for his
participation in the aerial bombing of a Gaza residential neighbourhood. The suit charges that Dichter provided
the necessary intelligence and gave final approval to drop a one-ton bomb on an apartment building in the
176 | THE PROHIBITION OF APARTHEID CHAPTER IV
targets have included militants and political leaders belonging to different Palestinian political parties
and factions. Hundreds of Palestinian have been killed by targeted assassination since September
2000, with hundreds more non-targeted civilian bystanders killed in the process.
The Israeli Military Advocate General’s office opens investigations into the killings of Palestinians in
the OPT only in exceptional cases.828 At the beginning of the second intifada, the Israeli High Court
of Justice refused to consider the legality of Israel’s assassinations policy, stating in response to a
petition that, ‘the choice of means of war employed by respondents… is not among the subjects in
which this court will see fit to intervene.’829 However, following a petition filed in January 2002, the
High Court accepted to hear a challenge to the legality of the assassinations policy.830 In its December
2006 judgment, the Court dismissed the petition, ruling that it cannot be determined that ‘targeted
killings’ are always legal or always illegal: ‘All depends upon the question of whether the standards
of customary international law regarding international armed conflict allow that preventative strike or
not.’831
The Court’s decision hinged on the definition of civilians and combatants under international
humanitarian law and how ‘taking direct part in hostilities’ is construed. In this regard the Court
applied a broad and vague interpretation of the phrase:
(T)he ‘direct’ character of the part taken should not be narrowed merely to the person
committing the physical act of attack; those who have sent him, as well, take ‘a direct part’.
The same goes for the person who decided upon the act and the person who planned it. It is
not to be said about them that they are taking an indirect part in the hostilities.832
This interpretation corresponds with the Israeli political establishment’s position that all Palestinians
involved in military resistance to the Israeli occupation are legitimate targets for targeted killings,
including members of the Palestinian political and spiritual leadership.833 Sheikh Ahmad Yassin and
middle of the night, which killed fifteen persons and injured over 150 others. Legal documents available at:
http://ccrjustice.org/ourcases/current-cases/matar-v.-dichter.
828Human Rights Watch, ‘Promoting Impunity – The Israeli Military’s Failure to Investigate Wrongdoing’ (June
2005). See also H.C. 9594/03, B’Tselem, et al. v. The Military Judge Advocate General et al. (still pending), in
which B’Tselem and the Association for Civil Rights in Israel (ACRI) demanded the initiation of criminal
investigations in all cases of Israeli soldiers killing Palestinian civilians not involved in hostilities. See also Hala
Khoury-Bisharat, ‘Israel and the Cultural of Impunity,’ Adalah Newsletter, Vol. 37 (June 2007), available at:
http://www.adalah.org/newsletter/eng/jun07/ar1.pdf.
829 H.C. 5872/01, MK Mohamad Barakeh v. Prime Minister Ariel Sharon, PD 46 (3), 1, dismissed 29 January
2001.
830 The petition was filed to the Supreme Court on 24 January 2002 by PCATI and LAW. See, H.C. 769/02, The
Public Committee against Torture in Israel v. The Government of Israel, available at:
http://elyon1.court.gov.il/files_eng/02/690/007/A34/02007690.a34.pdf.
831 Paragraph 60 of the judgment.
832 Paragraph 37 of the judgment. For a different position see, Expert Opinion by Antonio Cassese, ‘On Whether
Israel’s Targeted Killings of Palestinian Terrorists is Consonant with International Humanitarian Law’, available
at: http://www.stoptorture.org.il. Some scholars have opined that this part of the court’s decision is adequately
supported in the existing literature: see, for example, William J Fenrick, ‘The Targeted Killings Judgment and
the Scope of Direct Participation in Hostilities’ (2007) 4 Journal of International Criminal Justice 2 at 332-338.
833 The Israeli leadership and army do not distinguish between Palestinian attacks on soldiers and settlements
and Palestinian attacks on civilians. The Israeli Chief of Staff has declared that all members of Hamas are
legitimate targets for assassinations. See Amos Harael, ‘The IDF presents moral arguments for assassinations,’
Haaretz (5 September 2003) (Hebrew), available at:
http://www.haaretz.co.il/hasite/pages/ShArt.jhtml?itemNo=337186.
CHAPTER IV PROHIBITION OF APARTHEID | 177
Abd el-Aziz Rantissi are among the more prominent political and spiritual leaders of Hamas extrajudicially
executed by Israel in recent years.834
While the main significance of the court’s judgment could be the attempt to transform the focus of the
judicial review from policy to individual actions,835 the actions of the political leadership and the
Israeli military in depriving ‘wanted’ Palestinians of their right to life has not been outlawed by the
Courts. As in apartheid South Africa, extrajudicial killings by Israeli forces are sanctioned by the
executive branch of the state, and constitute an integral part of an institutionalised system designed to
eliminate dissent or resistance to the regime in order to maintain domination by one racial group over
another.
(II) C. Article 2(a)(ii) – Denial of Right to Life and Liberty of Person by Subjection to Torture
or to Cruel, Inhuman or Degrading Treatment or Punishment
(II) C.1. Interpretation
The formal prohibition on the use of torture or cruel, inhuman or degrading treatment is possibly the
least contested component of the international human rights regime. Such conduct is prohibited by a
number of different international and regional human rights texts and is outlawed even during times of
war.836 Article 5 of the Universal Declaration of Human Rights states that ‘o one shall be subjected
to torture or to cruel, inhuman or degrading treatment or punishment’. Similar – if not identical –
phrases can be found in Article 7 of the International Covenant on Civil and Political Rights (ICCPR),
Article 3 of the European Convention for the Protection of Human Rights and Fundamental Freedoms
and other regional human rights instruments. Furthermore, 144 states have ratified that UN
Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment
(CAT). Hence the language of Article 2(a)(ii) of the Apartheid Convention reflects a similar
prohibition on torture or cruel, inhuman or degrading treatment or punishment, but shifts the focus
from the level of the individual to that of the group. While not making explicit reference to torture or
cruel, inhuman or degrading treatment or punishment, Article 5(b) of ICERD prohibits racial
discrimination in the enjoyment of "the right to security of person and protection by the State against
violence or bodily harm, whether inflicted by government officials or by any individual group or
institution."
Legal academics and practitioners generally agree that the prohibition is both absolute and nonderogable.
As Lord Bingham of the House of Lords recently stated, ‘here can be few issues on
which international legal opinion is more clear than on the condemnation of torture. Offenders have
been recognised as the ‘common enemies of mankind’’837 Some have gone a step further by
suggesting that the prohibition on torture is in fact part of customary international law and a jus
cogens norm. In Delalic, the ICTY (Trial Chamber II) stated that the definition of Torture contained
in the UN CAT was ‘representative of customary international law’.838
Recent events at a global level – most notably the ‘war on terror’ – have brought these rogue practices
back into the limelight and courts have had to grapple with alleged violations of what was hitherto
834 See BBC News, ‘Israel’s ‘targeted killings’, (17 April 2004), available at:
http://news.bbc.co.uk/1/hi/world/middle_east/3556809.stm.
835 Ben Naftali, ‘A Judgment in the Shadow of International Criminal Law’ (2007) 5 Journal of International
Criminal Justice 322.
836 All four Geneva Conventions prohibit the use of torture. See also Article 2(2) of the UN Convention Against
Torture.
837 A (FC) and others (FC) (Appellants) v. Secretary of State for International Peace Operations, 255.
838 The Prosecutor v. Zejnil Delalic, Zdravko Mucic (a/k/a/ "Pavo"), Hazim Delic, Esad Landzo (a/k/a "Zenga")
Case No. IT-96-21-T, 16 November 1998, para. 459.
178 | THE PROHIBITION OF APARTHEID CHAPTER IV
widely considered a settled area of human rights law.839 The violation of the prohibition on torture or
cruel, inhuman or degrading treatment – like the crime of ‘apartheid’ – is an international crime.840
Hence the International Criminal Court could – if the Rome Statute’s jurisdictional provisions are
satisfied – exercise criminal jurisdiction over individuals responsible for torture committed as a crime
against humanity (on a widespread or systematic basis). It has been posited that States can exercise
universal jurisdiction over such violations.841 In addition to constituting a crime against humanity in
itself under the Rome Statute, torture can also amount to the crime against humanity of apartheid
according to Article 7(1)(f) where "committed in the context of an institutionalized regime of
systematic oppression and domination by one racial group over any other racial group or groups and
committed with the intention of maintaining that regime". The focus of the Apartheid Convention’s
prohibition of the denial of the right to life and liberty of a person by their subjection to torture or to
cruel, inhuman or degrading treatment or punishment is similarly linked to a concern with racial
oppression; that is, the prohibition in Article 2(a)(ii) of the Convention is focused on instances of
torture or cruel treatment or punishment connected with an overall apartheid policy of racial
oppression.
(II) C.2. Practices in Apartheid South Africa
Torture of detainees and other abuses associated with detention were the main forms of violation
reported to the TRC Commission. Torture with police impunity was indeed found to be the
cornerstone of the detention system, as ‘extracting information, statements and confessions, often
regardless of whether true or not’ allowed the state ‘to secure a successful prosecution and
neutralisation of yet another opponent of the apartheid system’.842 The TRC estimated that as many as
20,000 detainees were tortured in detention in the Eastern Cape alone. Nationally, it would be more
than a hundred thousand.843 The TRC concluded that it was the policy of the Department of Prisons
to use cruel, degrading and inhuman forms of punishment on prisoners including caning, ‘spare’ diet,
leg irons and solitary confinement.844
The TRC investigation revealed widespread torture of detainees by the security agencies in all the
Provinces.845 The most frequently reported perpetrator was the security police.846 Detention was
routinely accompanied by torture and sometimes led to death.847 Statements made to the Commission
revealed routine assault and torture of detainees by police. Beatings were the most frequently
mentioned violation, but electric shocks were also common and allegations of poisoning were made.
Some detainees returned home blind and/or deaf, some mentally ill. Some of those jailed after
sentencing were also mistreated.848 Prisons, as an institution of the state — together with the police,
839 See further A (FC) v. Secretary of State for the Home Department (2005) UKHL 71, Public Committee
Against Torture in Israel v. Government of Israel, Supreme Court of Israel, 1999 H.C. 5100/94 and U.S.
Department of Justice, Memorandum from Jay Bybee, Assistant Attorney General, to Alberto Gonzales, Counsel
to the President, August 1, 2002.
840 Cryer et al., An Introduction to International Criminal Law and Procedure at 295.
841 Ibid.
842 Max Coleman (ed.), Crime Against Humanity; Analysing the Repression of the Apartheid State, Human
Rights Committee of South Africa, Part A(3): ‘The Detention Weapon’. Available at:
http://www.sahistory.org.za/pages/library-resources/online%20books/crimehumanity/
detention%20weapon.htm.
843 TRC Report, Vol.4, Ch. 7, para. 14 . See entire volume for figures from other provinces.
844 TRC Report, Vol.4, Ch. 7, para. 67.
845 See generally TRC Report, Vol.3.
846 TRC Report Vol.2, Ch. 7, para. 28.
847 TRC Report, Vol.4 Ch. 7, para. 13; see Appendix to Ch. 7, ‘Death in Detention’.
848 TRC Report, Vol.3, CAP 2, para. 15.
CHAPTER IV PROHIBITION OF APARTHEID | 179
the judiciary and the security apparatus — were an integral part of the chain of oppression of those
who resisted apartheid.849
(II) C.3. Israeli practices in the OPT
Since the OPT came under Israeli military rule in 1967, Israel has employed a policy of arresting and
imprisoning Palestinians on a massive scale. In one count, at least 650,000 Palestinians, constituting
around 20 percent of the total Palestinian population of the OPT and close to 40 percent of the male
population, have been imprisoned at some time by the Occupying Power.850 Between the beginning of
the second intifada in September 2000 and February 2007, approximately 45,000 Palestinians were
imprisoned851. In February 2009, B’Tselem reported 7,940 Palestinians were being held in Israeli
prisons, 548 of whom were in administrative detention (without trial). Because arrest and
imprisonment are often accompanied by torture and abuse used to extract confessions and gain
information about resistance activities, it is arguable that a primary purpose of this policy is to
suppress resistance to the occupation and cement Israel’s domination over the Palestinian population
in the OPT.852 Mass imprisonment has also severely impacted the Palestinian community and families
of prisoners in the OPT.853
As noted by the UN Committee Against Torture in its Concluding Observations on Israel from 2001,
the absolute prohibition on torture in international law has not been incorporated into Israeli law.854 In
1999, the Israeli High Court of Justice held certain methods of interrogation to be illegal, but allowed the
use of pressure and discomfort for the purpose of extracting information from interrogees.855 The High
Court also indicated that agents of the General Security Services (GSS, also referred to as the Israel
Security Agency, or ISA), who used torture in extreme circumstances on so-called ‘ticking bombs,’856
849 TRC Report, Vol.4 CAP 7, para 1 and Human Rights Committee (1998), p. 55.
850 Addameer, Prisoners’ Support and Human Rights Association, ‘Political Detention’. Available at:
http://www.addameer.org/detention/background.html.
851 The Palestinian Central Bureau of Statistics, ‘Press Release on the Occasion of Palestinian Prisoners Day’,
14 April 2007. Available at: http://www.pcbs.pna.org/Portals/_pcbs/PressRelease/e-Prisoners_Day2007.pdf.
852 See, e.g., Lisa Hajjar, ‘International Humanitarian Law and ‘Wars on Terror’: A comparative analysis of
Israeli and American doctrines and policies,’ Journal of Palestine Studies, vol. XXXVI, no. 1 (Autumn 2006),
pp. 21-42.
853 See, for example, testimonies gathered by HaMoked – Centre for the Defence of the Individual and B’Tselem:
The Israeli Information Centre for Human Rights in the Occupied Territories, in ‘Absolute Prohibition: The
Torture and Ill-Treatment of Palestinian Detainees’, May 2007.
854 Available at: http://www.unhchr.ch/tbs/doc.nsf/(Symbol)/A.57.44,paras.47-53.En?Opendocument. Israel ratified
the International Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment
(CAT) on 3 October 1991. It has placed two reservations to the Convention: ‘1. In accordance with Article 28 of
the Convention, the State of Israel hereby declares that it does not recognise the competence of the Committee
provided for in Article 20; 2. In accordance with paragraph 2 of article 30, the State of Israel hereby declares
that it does not consider itself bound by paragraph 1 of that article.’ Israel has not signed the Optional Protocol
to the Convention.
855 H.C. 5100/94, The Public Committee Against Torture in Israel v. The Government of Israel, 53(4) P.D. 817.
856 The term ‘ticking bomb’ is used to describe individuals who present an immediate physical threat to the
security of the State of Israel or who hold information about such a threat, and refers to the race against time to
prevent the threat from materializing. Proponents of the use torture to extract information from ‘ticking bombs’
justify their stance on the potentially great loss of life that could result from such a threat. See generally, The
Public Committee Against Torture in Israel, ‘Ticking Bombs: Testimonies of torture victims in Israel’, May
2007, available at: http://www.stoptorture.org.il/files/140<1>.pdf. See also, Jeremy Waldron, ‘Torture and Positive
Law: Jurisprudence for the White House’, Columbia Law Review, Vol. 105 (6), October 2005, p. 1714, and
David Luban, ‘Liberalism, Torture and the Ticking Bomb’, Virginia Law Review, Vol. 91, October 2005, p.
1140. However, Israel regularly perpetrates torture in situations that do not comply with the problematic ‘ticking
bomb’ scenario. See, e.g., The Public Committee Against Torture in Israel, ‘Ticking Bombs’, pp. 10-11. The
180 | THE PROHIBITION OF APARTHEID CHAPTER IV
could avoid prosecution on the basis of the ‘necessity defence’ set forth in article 34K of Israel’s Penal
Law.857
Thus, the High Court has left a legal ambiguity regarding torture which has allowed for its continued use
by the state and the GSS in the case of ‘security’ prisoners and detainees, the overwhelming majority of
whom are Palestinians. According to statistics obtained from the Israel Prison Service, as of 6
November 2006, from a total 9,498 ‘security prisoners,’ only 12 were Jewish.858 The Court also failed
to define precisely the circumstances in which the necessity defence is available, leaving scope for a
broad interpretation by the GSS and a concomitant continuation of torture and other cruel, inhuman or
degrading treatment or punishment.859
Following the High Court’s 1999 ruling and the outbreak of the second intifada in 2000, Israel has
continued various practices including physical coercion that violate international law, notably the
CAT and the ICCPR, against the many thousands of Palestinian prisoners incarcerated in its prisons
and detention centres. Many of these practices were identified as subjects of concern by the UN
Committee Against Torture in 2001,860 the UN Human Rights Committee in 2003,861 and the UN
Special Rapporteur on the Promotion and Protection of Human Rights and Fundamental Freedoms
while Countering Terrorism in November 2007.862 According to the Public Committee Against Torture
report submitted by the Special Rapporteur on the promotion and protection of human rights and fundamental
freedoms while countering terrorism, Martin Scheinin, to the UN Human Rights Council on 28 November 2007,
Addendum (A/HRC/6/17/Add.1) stated that, ‘The Special Rapporteur was shocked by the unconvincing and
vague illustrations by the ISA of when such ‘'ticking bomb’ scenarios may be applicable. He was troubled by
the process by which individual interrogators would seek approval from the Director of the ISA for the
application of special interrogation techniques, potentially rendering this as a policy rather than a case-by-case,
ex post facto, defence in respect of wrongful conduct.’ Available at:
http://domino.un.org/unispal.nsf/eed216406b50bf6485256ce10072f637/5f8dd0dc16603dd5852573aa0056d736!Open
Document.
857 Article 34K of the Penal Law, entitled ‘Necessity’, stipulates that, ‘A person will not bear criminal liability
for committing an act that was immediately necessary for the purpose of saving the life, liberty, body or
property, either of himself or his fellow person, from a real danger of serious harm, due to the conditions
prevalent at the time the act was committed, there being no alternative means for avoiding the harm.’
858 Letter from the Israel Prison Service to Adalah, dated 6 November 2006.
859 See LAW – The Palestinian Society for the Protection of Human Rights and the Environment, The Public
Committee Against Torture in Israel (PCATI), and The World Organisation Against Torture (OMCT),
‘Comments on Issues relating to Palestinian Detainees in the Third Periodic Report of the State of Israel
Concerning the Implementation of the International Covenant on Civil and Political Rights’, September 2002,
pp. 13-24, available at: http://www.stoptorture.org.il/files/comments.pdf. The UN Human Rights Committee stated
its concern that, ‘interrogation techniques incompatible with article 7 of the Covenant are still reported
frequently to be resorted to and the ‘necessity defence’ argument, which is not recognized under the Covenant,
is often invoked and retained as a justification for ISA actions in the course of investigations’, and
recommended that Israel review its recourse to this argument. See, Concluding Observations of the Human
Rights Committee: Israel, 21 August 2003 (CCPR/CO/78/ISR), para. 18, available at:
http://www.unhchr.ch/tbs/doc.nsf/(Symbol)/CCPR.CO.78.ISR.En?Opendocument.
860 Conclusions and Recommendations of the Committee against Torture: Israel, 23 November 2001,
CAT/C/XXVII/Concl.5.
861 Concluding observations of the Human Rights Committee: Israel, 21 August 2003, CCPR/CO/78/ISR. Available
at: http://www.unhchr.ch/tbs/doc.nsf/(Symbol)/CCPR.CO.78.ISR.En?OpenDocument.
862 Report of the Special Rapporteur on the promotion and protection of human rights and fundamental freedoms
while countering terrorism, Martin Scheinin, Addendum, Mission to Israel, Including Visit to Occupied Palestinian
Territory, A/HRC/6/17/Add.4, 16 November 2007. Available at:
http://domino.un.org/unispal.nsf/c25aba03f1e079db85256cf40073bfe6/7ad9a5183461be7e852573aa0058b5ba!Open
Document.
CHAPTER IV PROHIBITION OF APARTHEID | 181
in Israel (PCATI), torture in Israel is ‘carried out in an orderly and institutional fashion.’863 On 2
December 2008, Israeli human rights organisations filed a contempt of court motion to the High Court
of Justice against Israel for its policy of granting GSS investigators à priori permission to practice
torture in fundamental violation of the Court’s 1999 decision.864 The organisation submitted, inter
alia, that, ‘he contempt involved is particularly egregious, consistent and systematic and is
enshrined in directives and procedures’, in particular the ‘necessity interrogation procedure’.
In March 2009, nearly 8,000 Palestinian political prisoners were in detention in the Israeli prison
system, classified by the Israeli prison services as security prisoners and detainees. This number
included approximately 550 in administrative detention and others who were detained
incommunicado, as well as around 400 children.865 Under Israeli law, an individual is considered to be
an adult at the age of 18, whereas under Israeli Military Order No. 132, Palestinians in the OPT are
considered by Israel to be adults at the age of 16. Thus, Palestinian juveniles are afforded the same
harsh treatment and receive the same punishment as adult prisoners. This discrepancy has been raised
as a matter of concern by the UN Committee Against Torture866 as well as by the UN Committee on
the Rights of the Child.867
The practice of torture and other forms of ill-treatment is most widespread during the arrest and
interrogation of Palestinians by the Israeli military forces and Border Police.868 Particularly harsh
interrogation methods are used by the GSS to obtain information and confessions. Between July 2005
and January 2006, 49 percent of the Palestinians detained for interrogation by the GSS reported being
beaten during the stages preceding interrogation, 33 percent being held in painful bindings, 34 percent
being subjected to curses and humiliation, 23 percent being denied basic needs, and 67 percent
reported being exposed to at least one of the above abuses.869 During interrogation by the GSS, 68
percent of Palestinian prisoners reported being held in isolation during all or most of the interrogation
period, 88 percent being held in solitary confinement and experiencing sensory deprivation during all
or most of the interrogation period, 45 percent being deprived of sleep, 73 percent being given poorquality
food, 96 percent being cuffed for protracted periods in the painful shabah position (in which
the detainee’s hands and feet are tightly bound to a chair or low stool), 29 percent being subjected to a
naked body search, and 73 percent to insults and other humiliations.870 The conditions of confinement
in Israeli prisons also give rise to concerns of ill treatment that can amount to torture, including
cramped and unhygienic living spaces and medical neglect. Israeli law permits the imposition of
separate, harsher conditions of confinement on ‘security’ detainees as compared to ordinary criminal
863 PCATI, ‘Back to a Routine of Torture: Torture and Ill-treatment of Palestinian Detainees during Arrest
Detention and Interrogation,’ September 2001-April 2003, p. 12. Available at:
http://www.stoptorture.org.il/files/back%20to%20routine.pdf.
864 For more information, see PCATI, ‘PCATI, ACRI, HaMoked filed a contempt of court motion to the High
Court of Justice’ 2 December 2008, available at: http://www.stoptorture.org.il/en/node/1332.
865 See B’Tselem: The Israeli Information Centre for Human Rights in the Occupied Territories, at
http://www.btselem.org/English/Statistics/Detainees_and_Prisoners.asp, and
http://www.btselem.org/English/Statistics/Minors_in_Custody.asp.
866 UN Committee Against Torture, Conclusions and recommendations: Israel (25 September 2002),
A/57/44,paras.47-53, para. D(6)(d). Available at: http://www.unhchr.ch/tbs/doc.nsf/(Symbol)/A.57.44,paras.47-
53.En?Opendocument.
867 Concluding Observations of the Committee on the Rights of the Child: Israel, 9 October 2002,
CRC/C/15/Add.195., Article 62 (a). Available at:
http://www.unhchr.ch/tbs/doc.nsf/(Symbol)/CRC.C.15.Add.195.En?Opendocument.
868 See, e.g., PCATI, ‘No Defense: Soldier violence against Palestinian detainees’, June 2008. Available at:
http://www.stoptorture.org.il/files/No_Defense_Eng.pdf.
869 B’Tselem, Centre for the Defence of the Individual, ‘Absolute Prohibition: The torture and ill-treatment of
Palestinian detainees,’ July 2007, p. 38, available at:
http://www.btselem.org/Download/200705_Utterly_Forbidden_eng.pdf.
870 Ibid., pp. 63.
182 | THE PROHIBITION OF APARTHEID CHAPTER IV
detainees simply because they are alleged to have committed offences defined as security offences.871
These discriminatory conditions violate the fundamental rights of Palestinian detainees.
By contrast, the handful of Israeli Jewish prisoners who are classified as ‘security’ prisoners, have
been permitted to exercise numerous rights, including conjugal visits. For example, prisoner Yigal
Amir, who was convicted in 1996 of murdering Prime Minister Yitzhak Rabin for ideological reasons,
has since fathered a son in prison and has been allowed open visits with his family and phone calls.
Similarly, Jewish-Israeli prisoner Ami Popper, who was convicted in 1990 of murdering seven
Palestinian labourers and wounding 11 others, was married in prison in 1993 and fathered his first
child in prison in 1995. He has since fathered another two children. He has also been granted leave to
take furloughs from prison. No Palestinian security prisoner has been awarded such privileges.872
As documented by the Public Committee Against Torture in Israel, a number of Palestinian detainees
have been subjected to a form of psychological torture by the GSS, in the form of the arrest and
exploitation of innocent family members of the detainees under interrogation, for the purpose of
applying additional pressure to force a confession or obtain information.873 In some cases the GSS has
informed prisoners, either falsely or accurately, that their relatives are also being tortured.
Certain provisions within Israeli law facilitate the practice of torture at the stages of detention,
interrogation and imprisonment. In some cases ‘security’ detainees are subject to a different set of
laws and regulations governing criminal procedures during detention, with the result that individuals
can be detained, deprived of their liberty, isolated from the outside world and interrogated by the GSS
for up to three weeks, prior to being brought before a court. These harsher laws de facto apply almost
exclusively to Palestinians, and virtually no Jewish prisoners or detainees are subjected to them.874
Thus within the criminal justice system Israel has effectively created a distinct track for Palestinian
detainees that operates in parallel with but separately from the ‘ordinary’ criminal track. The former is
characterised by the systematic denial of due process rights and other basic rights and safeguards, for
the purpose of maintaining a system of control and domination over OPT Palestinians.
871 Regulation 22 of the Criminal Procedure (Enforcement Powers – Detentions) Law (Enforcement Powers –
Detention) (Conditions of Detention) – 1997. On the basis of this regulation security detainees are also not
entitled to a daily walk in the open air or to use the telephone, even to call their attorney. Criminal detainees, by
contrast, are permitted a daily hour-long walk in the open air and are allowed to make a daily telephone call to
their attorneys, as well as daily calls to their family and friends. Criminal detainees are provided with a bed,
while security detainees are provided a thin mattress and blankets; criminal detainees, but not security detainees
are provided newspapers, books, TVs, radios a razor and mirror, an electric kettle, wall light, fan and heater.
Some of the discriminatory conditions are hygiene-related: for example, the cells of security detainees do not
contain a basin, and while criminal detainees’ cells must be sanitized and disinfected annually and provided with
detergents, this is not the case for security detainees.
872 See, e.g., Prisoners’ Petition 609/08, Walid Daka v. the Israel Prison Service (Nazareth District Court) (case
pending). This political prisoner – a Palestinian citizen of Israel – is the first Palestinian to seek conjugal rights.
873 For more information, see PCATI, ‘Family Matters, Using Family Members to Pressure Detainees’, April
2008. Available at: http://www.stoptorture.org.il/files/Fmily%20Matters%20full%20report%20eng.pdf. On 16 April
2008, PCATI and a number of other Israeli and Palestinian human rights organizations filed a petition to the
Supreme Court of Israel to demand that the use of family members as means of exhorting pressure on suspects
during interrogations by state authorities be absolutely prohibited. See H.C. 3533/08, Maisoun Suweti, et al. v.
The General Security Services, et al. (case pending).
874 The Criminal Procedure (Detainees Suspected of Security Offenses) Law 2006, for example, allows
‘security’ detainees to be detained for 96 hours without any judicial oversight (in ordinary criminal cases,
suspects may be detained for a period of 24 hours or 48 hours), to have their detention extended in their absence,
not to be told of the court’s decision to lengthen their arrest, and to be denied access to legal counsel for a period
of 21 days. The law was specifically enacted to provide Israel with greater powers to handle Palestinians from
Gaza after the unilateral ‘disengagement’ and the dismantling of the Israeli military court system there in 2005.
The law seeks to allow security suspects to be interrogated far from the purview of the courts, thereby fostering
conditions conducive for detainees to be tortured and exposed to unlawful interrogation methods.

Read the following for more: http://www.hsrc.ac.za/Document-3227.phtml|Occupation, Colonialism, Apartheid?>

[FarrenH]

55. ERGO

IT. IS. APARTHEID.

[shira]

57. LOL.......point me to specific places in this article that describe Israeli apartheid that is NOT...

...based on racism, since the racist charge has already been thorougly refuted - the proof being your silence to those arguments - meaning you are utterly incapable of replying with any rational argument to support your silly assertion.

You were right earlier...this is a waste of time. You don't even realize you're receiving a humiliating ass-beating in this discussion. What's the point?

[FarrenH]

59. Its not an article, its a full blown study

drafted over years by international jurists. Your lazy use of language and definitions reflects the laziness of your thinking. But I'll summarise the key findings for you from the executive summary of the study (the evidence for these conclusions is described in detail in the linked study) - my bolding:

Israel’s practices in the OPT can be defined by the same three ‘pillars’ of apartheid. The
first pillar derives from Israeli laws and policies that establish Jewish identity for purposes of law
and afford a preferential legal status and material benefits to Jews over non-Jews. The product of
this in the OPT is an institutionalised system that privileges Jewish settlers and discriminates
against Palestinians on the basis of the inferior status afforded to non-Jews by Israel. At the root
of this system are Israel’s citizenship laws, whereby group identity is the primary factor in
determining questions involving the acquisition of Israeli citizenship. The 1950 Law of Return
defines who is a Jew for purposes of the law and allows every Jew to immigrate to Israel or the
OPT. The 1952 Citizenship Law then grants automatic citizenship to people who immigrate
under the Law of Return, while erecting insurmountable obstacles to citizenship for Palestinian
refugees. Israeli law conveying special standing to Jewish identity is then applied extraterritorially
to extend preferential legal status and material privileges to Jewish settlers in the OPT
and thus discriminate against Palestinians. The review of Israel’s practices under Article 2 of the
Apartheid Convention provides abundant evidence of discrimination against Palestinians that
flows from that inferior status, in realms such as the right to leave and return to one’s country,
freedom of movement and residence, and access to land. The 2003 Citizenship and Entry into
Israel Law banning Palestinian family unification is a further example of legislation that confers
benefits to Jews over Palestinians and illustrates the adverse impact of having the status of
Palestinian Arab. The disparity in how the two groups are treated by Israel is highlighted through
the application of a harsher set of laws and different courts for Palestinians in the OPT than for
Jewish settlers, as well as through the restrictions imposed by the permit and ID systems.

The second pillar is reflected in Israel’s grand policy to fragment the OPT for the purposes
of segregation and domination. This policy is evidenced by Israel’s extensive appropriation of
Palestinian land, which continues to shrink the territorial space available to Palestinians; the
hermetic closure and isolation of the Gaza Strip from the rest of the OPT; the deliberate
severing of East Jerusalem from the rest of the West Bank; and the appropriation and
construction policies serving to carve up the West Bank into an intricate and well-serviced
network of connected settlements for Jewish-Israelis and an archipelago of besieged and noncontiguous
enclaves for Palestinians. That these measures are intended to segregate the
population along racial lines in violation of Article 2(d) of the Apartheid Convention is clear
from the visible web of walls, separate roads, and checkpoints, and the invisible web of permit
and ID systems, which combine to ensure that Palestinians remain confined to the reserves
designated for them while Israeli Jews are prohibited from entering those reserves but enjoy
freedom of movement throughout the rest of the Palestinian territory.
Whether the confinement of Palestinians to certain reserves or enclaves within the OPT is
analogous to South African ‘grand apartheid’ in the further sense that Israel intends Palestinian
rights ultimately to be met by the creation of a State in parts of the OPT whose rationale is based
OCCUPATION, COLONIALISM, APARTHEID? | 15
on racial segregation engages political questions beyond the scope and method of this study.
Within the scope of this study is that, much as the same restrictions functioned in apartheid
South Africa, the policy of geographic fragmentation has the effect of crushing Palestinian socioeconomic
life, securing Palestinian vulnerability to Israeli economic dominance, and of enforcing
a rigid segregation of Palestinian and Jewish populations. The fragmentation of the territorial
integrity of a self-determination unit for the purposes of racial segregation and domination is
prohibited by international law.

The third pillar upon which Israel’s system of apartheid in the OPT rests is its ‘security’
laws and policies. The extrajudicial killing, torture and cruel, inhuman or degrading treatment and
arbitrary arrest and imprisonment of Palestinians, as described under the rubric of Article 2(a) of
the Apartheid Convention, are all justified by Israel on the pretext of security. These policies are
State-sanctioned, often approved by the Israeli judicial system, and supported by an oppressive
code of military laws and a system of improperly constituted military courts. Additionally, this
study finds that Israel's invocation of 'security' to validate sweeping restrictions on Palestinian
freedom of opinion, expression, assembly, association and movement appears to mask an
underlying intent to suppress dissent to its system of domination, and thereby maintain control
over Palestinians as a group. This study does not contend that Israel’s claims about security are
by definition lacking in merit, but rather that Israel's invocation of 'security' to validate severe
policies and disproportionate practices toward the Palestinians is operating principally to validate
suppression of Palestinian opposition to a system of domination by one racial group over
another.
Thus, while the individual practices listed in the Apartheid Convention do not in
themselves define apartheid, these practices do not occur in the OPT in a vacuum, but are
integrated and complementary elements of an institutionalised and oppressive system of Israeli
domination and oppression over Palestinians as a group: that is, a system of apartheid.
In summary, this study finds that Jewish and Palestinian identities function as racial
identities in the sense provided by ICERD, the Apartheid Convention, and the jurisprudence of
the International Criminal Tribunals for Rwanda and the former Yugoslavia. Israel’s status as a
‘Jewish State’ is inscribed in its Basic Law and it has developed legal and institutional
mechanisms by which the State seeks to ensure its enduring Jewish character.


---

AGAIN, this is an executive summary. The detailed report shows that legal measures to preserve the Jewish nature of the state not only amount to discrimination against Palestinians in the occupied territories, but foist second-class citizenship on Israeli Arabs, despite their right to vote. These include laws preventing family reunification, laws preventing marriage (without loss of citizenship) and more. That these laws apply to Arabs and not to Jews is de facto discrimination, in law against Israel's Arab population. This extends to laws governing the settlements. So there is two-tier discrimination and your simplistic invocation of particular rights accorded to Israeli Arabs does not obviate legislative discrimination that exists elsewhere in Israeli law.

You constantly link to blogs, newspaper articles and polemic written by spittle-flecked Israeli nationalists. But I defy you to find a single legal analysis of this depth and quality of evidence, from a credible uninvolved party like the SAHSRC*, written by an international team of respected jurists of International law. You cannot, because there is none. Just a cacaphony of sophomoric propaganda.

It. Is. Apartheid.

*Who coincidentally are EXPERTS on the subject of Apartheid.

[shira]

61. your study is hate masquerading as serious research

here's a quote from your study:

"The product of this in the OPT is an institutionalised system that privileges Jewish settlers and discriminates
against Palestinians on the basis of the inferior status afforded to non-Jews by Israel.

There is absolutely NOTHING that inhibits any Israeli, whether Jew or Arab, to share in the exact same privileges as any settlers in the OPT. These jokers may as well be accusing Israel of Jew-only roads rather than Israel-only roads. They're trying to hang the racism charge here where it doesn't belong. You realize Jews from Israel and abroad VOLUNTEER to live in the OPT - primarily due to cheaper housing there? Again - NOTHING prohibits any non Jews from doing the same, including non jewish Arabs who wish to join settlers already there.

This is yet another hollow charge, but you buy it because you're incapable of distinguishing between propaganda and fact.

[FarrenH]

63. Your reply is rabid, spittle flecked nationalist polemic

disguised as argument. It is the ludicrous posturing of a right-wing propagandist.

You have never, nor will ever acknowledge or even read the work of any organisation, even if it was widespread standing and credibility, that is critical of the occupation. You have demonstrated this over and over on this very board, on which your only function seems to be trumpeting propaganda for an Apartheid state. Based on your postings on this board, one may conclude that you believe the UNHCHR, Amnesty International, the HRW, the ICJ, the SAHSCRC and dozens of other organisations with massive authority in the field of human rights to be anti-semitic hate organisations. By your standards, there are no human-rights organisations outside of Israel, a position that is so fucking absurd I sometimes wonder if you're some kind of surrealist troll.

The study details specific Israeli laws that accords Jewish Israelis additional rights not accorded to Israeli Arabs. Thus they are matters of FACT, ON THE ISRAELI STATUTE BOOKS. Your protestations, instead of acknowledging this, are of the form "BUT LOOK OVER HERE!", demanding that some area of Israeli law that is not, on paper, discriminatory, obviates aspects of Israeli law that are, factually, prima facie examples of discriminatory law.

That is not rebuttal at all. It is not even logic. Its amusing to watch, though.

[shira]

66. laws that grant Jews more rights in the Jewish homeland are no more racist than French or Greek laws

that favor those nationals over others in their respective homelands. You're either employing yet another double-standard (that you're oblivious to) or you're going to have to admit laws that favor Spanish, Greeks, Japanese, etc. are also EQUALLY discriminatory against others outside those ethnic groups. Even then, you should explain why you favor Israel being singled out (which is defacto anti-semitism) for this when other countries are not.

Here:

In addition to Israel, several other countries provide immigration privileges to individuals with ethnic ties to these countries. Examples include Germany<19>, Ireland, Serbia, Greece, Japan, Turkey, Italy, Spain, Chile, and Finland. (See Right of return and Repatriation laws.)
The Israeli law is perhaps most similar to the Greek law, in that neither requires an ancestor who had citizenship or who was born in the "homeland," requiring, rather, evidence of membership in the ethnic and religious community of the far-flung, ancient Greek diaspora.

http://en.wikipedia.org/wiki/Law_of_Return#Similar_laws_in_other_countries

[FarrenH]

68. The laws of Japan, Italy, Spain, Chile and Finland

grant that right to members of any ethnic group originating from the country in which those laws exist. The laws of Israel do not.

The Greek law would be de facto discrimination if it were coupled with laws denying former residents of Greece the right of return to Greece. It is not. Israeli laws are.

Keep trying.

[shira]

70. Hence, the JEWISH homeland favoring Jews as opposed to the Greek, Japanese, Spanish, etc...homelands

that favor greeks, japanese, spanish, etc.

at this point, you're hopeless......maybe people reading this exchange can benefit from it.

[FarrenH]

71. I'm sure they will

There are no French laws that accord more rights for people of French ETHNICITY in France, only laws that accord more rights to people with French CITIZENSHIP in France. As a signer of the European Convention on Human Rights, France cannot pass the former kind of laws. That you cannot see the difference is indicative of your cognitive failings.

[shira]

74. I was wrong about France - but not the others like Spain, Greece, Italy, Japan...

I took 2 of the points mentioned in the synopsis of your hate-motivated "scholarly" work and refuted them. Now we know that study is shit and you realize now why I didn't waste my time previously reading such hostility masquerading as serious and legitimate research.

not to mention the fact that you're unable and incapable of responding to my other points that prove what's going on is not based on racism.

I can't help it if you're too dishonest to admit you're wrong.

I gave you the benefit of the doubt before - but not anymore. This is all an exercise for you to get your rocks off demonizing and deligitimizing Israel. It has nothing to do with sincere concern and human rights. What's disgraceful is that you use real African apartheid to cover for your irrational hatred of the Jewish state and you pretend that's true liberalism. How utterly disgusting.

[FarrenH]

78. You obviously have a very strange definition of refute

if you think you refuted the study. You don't even understand the study. Your response is to post a whole lot of shit about ancestral visa laws that are uncontroversial, perfectly commonplace and completely different from Israeli law under discussion. Not just where France is concerned, but the other countries mentioned. You call a two-year study by an international team of experts in international law "hate motivated" without even reading the introduction, without knowing the parties involved, without any evidence at all and claim refutation with purported evidence that is demonstrably not evidence, then claim victory. Sad, really. Especially since I only mentioned one set of blatantly discriminatory laws (which you fail to refute). Your failure to read the study obviously sets you up to be knocked down on half a dozen more factual instances of discriminatory and racist practise in contemporary Israeli engagement with the West Bank. You're not interested in truth, shira.

I've tangled with your type a million times growing up in Aparheid SA. You're only interested in defending your precious state, right or wrong. That's a very ugly, damaging kind of nationalism which constantly erodes both justice and human welfare, and it sickens me. In the long term it never survives, because its very selfish qualities make it unappealing to all who are excluded by it. Which is why the world is turning against Israel. Israeli Apartheid will eventually find itself starved of support and go the way of South African Apartheid in the end, and future generations of Israelis will remember it as a shameful period in Israel's history, the way white schoolchildren in South Africa remember the shamefulness of our own Apartheid.

And it is Apartheid.

ETA, you are wrong about Spain, Greece and Italy, too. You really have no idea what you're talking about. Beyond this, your response betrays the fact that you fail to even understand what qualifies something as Apartheid. To wit, laws designed in a manner that BOTH accord one ethnic group more rights AND divides, oppresses and denies another ethnic group rights via a draconian system of control, under the guise of "security". To suggest that, say the modern Greek state engages in such behaviour because it has ancestral visa laws (which include the right of any former Greek citizen of non-Greek ethnicity to return) is fucking stupid.

[shira]

81. it's not apartheid if it's not based on race.....which Jimmy Carter admits

do some more homework and lemme know when you're ready to present irrefutable evidence pointing to RACIST based apartheid in the OPT, okay?

[FarrenH]

82. Race is a social construct, not a biological one

There are no clearly delineated races in biology. This is first year sociology stuff, shira. You don't get to dictate what is and isn't a race. Context and law dictate that. If I call all Italians "Mediteranean Grease Monkeys", I am considered racist. In that context, Italians are considered a race distinct from the Irish.

And its determination in law (as in moral reasoning) is generally dictated by the manner in which groups identify both their own and other's ethnicity:

Fundamental to the question of apartheid is determining whether the groups involved
can be understood as ‘racial groups’. This required first examining how racial discrimination is
defined in ICERD and the jurisprudence of the International Criminal Tribunals for Rwanda and
the former Yugoslavia, which concluded that no scientific or impartial method exists for
determining whether any group is a racial group and that the question rests on local perceptions.
In the OPT, this study finds that ‘Jewish’ and ‘Palestinian’ identities are socially constructed in
the OPT as groups distinguished by ancestry or descent as well as nationality, ethnicity, and
religion. On this basis, the study concludes that Israeli Jews and Palestinian Arabs can be
considered ‘racial groups’ for the purposes of the definition of apartheid in international law.

You're really scraping the bottom of the barrel now, aren't you? Non-Jewish Arabs and Jews have both self-identified and identified each other as distinct "races" since the middle ages. Certainly, all international laws speaking to racial discrimination use subjective assessment of ethnicity as the basis for any charge.

Your preposterous argument amounts to an attempt to narrow the definition of a word to the point where two analogous scenarios are considered different on the grounds of accurate use of language alone, rather than dissimilarity. Even if such a pedantic distinction could be made it would be preposterous because it would rest on pedantry rather than moral distinction. Unfortunately for you it is made even more preposterous by the fact that such a distinction cannot, in this context, be made.

[shira]

83. so prove it's racism that defines Israel's actions and not competing nationalism

you have yet to do this - you keep condemning Israel's policies as racist but you bring no evidence proving it - ex. Israeli roads in the W.Bank (not racist since all Israeli non-Jews including Arabs can use them). You'd have a point if those roads were "Jew only", which many haters (whether dishonest or ignorant) try to claim.

[FarrenH]

86. You seem to think my charge relates to motive

It doesn't. It relates to fact. It is a fact that the discrimination described, on ethnic grounds, is racist.

[shira]

88. nonsense

Discrimination exists in all western countries - in one form or another against certain ethnic groups - but none of those nations are defined as racist.

I asked you for one example of policy that is blatantly racist (which you have failed to offer) and aimed at a particular ethnic group (which you have failed to identify).

Since you're so supremely confident in your position, this shouldn't pose a problem for you - but as we see, it does - why?

[FarrenH]

56. LOL. You don't even understand what I mean by selective racism.

Read the linked report above and it will explain it to you.

[shira]

58. I do understand - it's a ridiculous charge due to I/P being a national struggle unrelated to race.

It's totally disingenuous of you to pretend that your racist charges against Israel still have any merit.

Seriously, how dishonest can you possibly be? Ergo, this is why you're considered part of the irrational SLES that Carlo Strenger refers to.

[FarrenH]

67. The primary struggle on this thread

seems to be your struggle to engage reality. teeheehee

[shira]

69. Like I wrote previously, you're oblivious to the humiliating ass-beating you're receiving on this...

so there's really no point in going on with someone as intellectually dishonest, irrational, and clueless as you are.

[FarrenH]

72. m'kay

:D

Its Apartheid, baby, deal with it ;)

[Donald Ian Rankin]

14. Typical Steinberg bunk, I suspect

First of all, note that this article is by Gerald Steinberg, head of NGO monitor - hardly a reliable, unbiased or accurate source.

Secondly, note that when he gets to his actual examples of what he considers "anti-semitism", pretty much every one of them appears to be legitimage or at least semi-legitimate criticism of Israel.

If you regard drawing attention to the fact that Israel is a state that practices apartheid as ipse facto anti-semitic then a) Steinberg might have a case but b) you are wrong.

[subsuelo]

16. Typical J-Post right wing slander

[shira]

17. Anti-semitism in 3-D

Why is it so very difficult to combat the “new antisemitism”?

To modern eyes, classical antisemitism is easy to recognize. Films showing Jews draining the blood of gentile children or plotting to take over the world are clearly antisemitic, and are not only vulgar and illegal, but socially unacceptable throughout the free world.

Movies on such themes screened in recent months by government-controlled media in Iran, Egypt and Syria — and broadcast via satellite to millions of Muslims around the world (including, particularly, in Europe and even America) — employ motifs and canards that are familiar to us.

But while classical antisemitism was seen as being aimed at the Jewish religion or the Jewish people, the new antisemitism is far more subtle, directed as it is against the Jewish state. Hiding behind the veneer of “legitimate criticism of Israel,” this new antisemitism is much more difficult to expose.

Far too often, when we criticize particularly virulent anti-Israel statements as being rooted in antisemitism, our opponents claim that we are trying to stifle legitimate criticism of Israel by manipulatively labeling it as antisemitic.

Yet it has now become clear to leaders of the free world that not all criticism of Israel is legitimate.

Almost a year ago, the leaders of Europe recognized this principle for the first time, in their conference on battling antisemitism led by then-president of the European Commission Romano Prodi and joined by German Foreign Minister Joschka Fischer and others. And just this month, the first report on global antisemitism by the U.S. State Department did the same:

An important issue is the distinction between legitimate criticism of policies and practices of the State of Israel, and commentary that assumes an anti-Semitic character. The demonization of Israel, or vilification of Israeli leaders, sometimes through comparisons with Nazi leaders, and through the use of Nazi symbols to caricature them, indicates an anti-Semitic bias rather than a valid criticism of policy concerning a controversial issue.

This recognition of the difference between arguing over Israeli policy and attacking Israel or its leaders can be our starting point. If not all criticism is valid, how then do we define the boundary line?

I offer a simple “3-D” test for differentiating legitimate criticism of Israel from antisemitism. This “3-D” test applies the same criteria to the new antisemitism that for centuries identified different manifestations of classical antisemitism.

The first “D” is the test of demonization — as noted in the State Department report. Jews have been demonized for centuries as the embodiment of evil, whether in the theological form of a collective accusation of deicide or in the generalized depiction of Jews as money-grubbing Shylocks. Today we must take note when the Jewish state or its leaders are being demonized, with their actions being blown out of all rational proportion.

For example, the comparisons of Israelis to Nazis and of the Palestinian refugee camps to Auschwitz — comparisons heard frequently throughout Europe and on North American university campuses — are clearly antisemitic. Those who draw such analogies either are deliberately ignorant regarding Nazi Germany or, more commonly, are deliberately depicting modern-day Israel as the embodiment of evil.

The second “D” is the test of double standards. From discriminatory laws many nations enacted against Jews to the tendency to judge their behavior by a different yardstick, this differential treatment of Jews was always a clear sign of antisemitism. Similarly, today we must ask whether criticism of Israel is being applied selectively. In other words, do similar policies pursued by other governments produce similar criticism?

It is antisemitic discrimination, for instance, when Israel is singled out for condemnation by the United Nations for perceived human rights abuses while proven obliterators of human rights on a massive scale — like China, Iran, Cuba, Saudi Arabia, Sudan and Syria, to name just a few — are not even mentioned. Likewise, it is antisemitism when Israel’s Magen David Adom, alone among the world’s ambulance services, is denied admission to the International Red Cross.

The third “D” is the test of delegitimization. Traditionally, antisemites denied the legitimacy of the Jewish religion, the Jewish people, or both. Today, they attempt to deny the legitimacy of the Jewish state, presenting it as, among other things, the prime remnant of imperialist colonialism.

While criticism of an Israeli policy may not be antisemitic, the denial of Israel’s right to exist is always antisemitic. If other peoples, including 21 Arab Muslim States — and particularly the many states created in the postcolonial period following World War II — have the right to live securely in their homelands, then the Jewish people has that right as well, particularly given the sanction of the United Nations in setting up and recognizing the country at its founding. Questioning that legitimacy is pure antisemitism.

One recalls those 3-D movies we enjoyed as children. Until putting on special two-toned glasses, the picture was blurry. But with those glasses, the screen came alive, and everything was seen with perfect clarity. Similarly, if we do not wear the right glasses, the line between legitimate criticism of Israel and antisemitism can become blurred, so that we fail to recognize this ancient evil, much less fight it.

But when we apply the 3-D test and ask whether Israel is being demonized or delegitimized or subjected to a double standard, antisemitism will be easily recognizable. The 3-D test offers a simple and accurate reality-check.

My experience has convinced me that moral clarity is necessary for effectively struggling against evil. Evil must be recognized and isolated to be defeated. Only with clear moral demarcation, can evil be recognized and isolated. Evil thrives in moral confusion and uncertainty where right and wrong become a matter of opinion instead of clear, objective truth. With moral clarity, we can identify and expose the new antisemitism to universal condemnation.

Natan Sharansky is Israel’s minister for Diaspora affairs and Jerusalem.

http://www.forward.com/articles/4184/

[Donald Ian Rankin]

18. There's nothing antisemitic about "delegitimising" Israel's history.

Israel does, now, have a right to continue to exist, but it most certainly should never have been founded, and that right is based mostly in the last 67 years, slightly in the 100 before that, but not at all in the preceding three millenia as many zionists would like to claim.

Modern Israel is a colonial state that shares a name with biblical Israel, not biblical Israel reborn, and the vast majority of Israeli Jews are recent settlers, not returning natives.

By attempting to deny this, Sharansky himself fails his "double standard" test.


Of his other two Ds, the difference between demonisation and criticism is purely subjective. He's right that comparisons of Israel's behaviour to that of the nazis are unjustifiable, however.

As to "double standards", there is no other first-world country that has been carrying out a military occupation of a neighbour, very much against the will of the citizens of that state, for the past 60 years, so there is no real point of comparison.


Antisemitism is the criticism of Jews qua Jews. Criticism of Israel is occasionally motivated by antisemitism, but in practice only a tiny fraction of accusations of this have any grounding in fact.

Both false accusations of antisemitism and genuine and widespread anti-Muslim, anti-arab and anti-Palestinian bigotry have far more effect on westerna attitudes to Israel's treatment of the Palestinians than genuine antisemitism does.

[oberliner]

19. Israel "most certainly" should never have been founded?

You really think that is not an anti-semitic sentiment?

The establishment of Israel was just and necessary, rooted in centuries of struggle and decades of patient work.

Edit to add: Also where do you get the idea that Israel has been occupying a neighbor for 60 years? What neighbor was it occupying from 1949-1967?

[Donald Ian Rankin]

20. Absolutely; I think "Israel should have been founded" is anti-Palestinian bigotry if anything.

"A land without a people for a people without a land" was a perfectly good idea, and if a land without a people could have been found then founding Israel would have been perfectly reasonable.

However, taking the Palestinian's land and ethnically cleansing them was a crime against humanity.

Saying that Israel should not have been founded while defending e.g. the founding of the USA, the British conquest of Ireland, the treatment of the Australian aborigines etc would arguably be evidence of antisemitism, but as I've repeatedly posted elsewhere I don't do so. Israel is far from being alone among countries in that its foundation was morally wrong.

[oberliner]

21. Well that makes Obama an anti-Palestinian bigot

As he himself has expressed those views.

To deny statehood for Jews, in full knowledge of the horrific historical event that preceded Israel's founding, is a position that denies Jews the right to self-determination - a right that became an urgent need in the aftermath of the Holocaust.

That "land without a people" so-called quote is a bogus one in the sense that it was not actually coined or promoted by any prominent leaders of the Zionist movement but rather was imposed by outside observers. Early Zionists knew that there was no land that didn't have people in it - but rather the prevailing hope was that the Zionist enterprise would also help those who were already living in the region, who were, at the time, living under a colonialist regime.

A reasonable view - I would think - is that Israel and Palestine should have been founded simultaneously - with self-determination and freedom from colonialism granted to both the Jewish people and the Palestinian Arabs in two newly formed independent states.

Unfortunately it did not work out that way.

[Donald Ian Rankin]

22. Less so that any preceding American president

I have never heard him, or anyone else in mainstream US politics, question the assumption that "Israel's security is non-negotiable" or suggest that the security of the Palestinians should be non-negotiable or even important.

I think that the vast majority of Westerners think of Israeli Jews as "real people" and Palestinians as "not real people"; I don't know whether Obama actually believes that or whether he just feels he has to act as though he does; I suspect quite possibly the latter but it's impossible to tell.

So yes, I'm not convinced that Obama isn't bigotted against the Palestinians and in favour of the Israelis, but I regard the fact that he appears to be much less so than the vast majority of other Americans as a significant point in his favour.

Do you believe that the gypsies have a right to self-determination?

Personally, I believe that as a British Jew I have a right to British self-determination but not to Jewish self-determination; I think the idea that groups whose tie is ethnic rather than geographical have a right to their own governments and laws is a bad one.

[oberliner]

26. I've never heard of anyone who does not think of Palestinians as "real people"

Probably in the RW universe that sort of hatefulness exists - but I've never heard anyone who calls themselves a Democrat present that perception.

I would be interested in learning more about the movement towards self-determination for the gypsies. If you could point me to any sources, I'd appreciate it.

Thankfully in the Britain and the US of 2009, Jewish people are not singled out and discriminated against by the government in a systemic attempt to create a separation between that particular group and the rest of the country's population as was the case throughout much of the world when the Zionist movement was at its peak.

Without the long history of anti-semitic oppression, segregation, and attempted extermination, perhaps the movement for Jewish self-determination would never have had the support it eventually received.

[Donald Ian Rankin]

62. I've seldom heard anyone admit to thinking it.

There are, however, quite a number of regular posters in this forum who clearly do think it.

So far as I'm aware, there is no movement for gypsy self-determination, quite rightly. That was rather my point.

I am quite sure that without the history of Western antisemitism, Israel would never have been founded. It's worth noting, however, that most zionists actively deny that the justification for the foundation of modern Israel is modern Western antisemitism, and claim instead that it's a rebirth of biblical Israel - Obama's speech in Cairo where he pointed to Israel as a necessary response to the holocaust caused a furore in Israel. But Western antisemitism was almost - not quite - wiped out by the second world war and the realisation of the holocaust.

[shira]

65. western anti-semitism has not nearly disappeared since WW2 - those people are just too embarassed to

admit their true feelings, that's all....just like any racist against blacks. Through the anti-zionist movement, haters have a new way to vent their hostility and anger at Jooz.

And unless you believe dhimmi-status in Muslim lands did nothing to diminish Jewish human rights there, you're right - Israel is totally based on western anti semitism (and oh BTW, forget eastern anti-semitism in Russia).

[shaayecanaan]

24. It makes you an anti-Palestinian bigot, as well...

To deny statehood for Jews, in full knowledge of the horrific historical event that preceded Israel's founding, is a position that denies Jews the right to self-determination - a right that became an urgent need in the aftermath of the Holocaust.

To deny statehood for Assyrians, in full knowledge 250 000 Assyrians killed by Turks from 1915-1919, and the continuing genocide against Assyrians in Iraq, is a position that denies Assyrians the right to self-determination - a right that became an urgent need in the aftermath of the Assyrian Genocide.

Therefore, I propose the restoration of historical Assyria as a state for the Assyrians. A land for a people for a people without a land. This will comprise about 30% of Syria, 20% of Jordan and 30% of Israel. Given that Israel would get to keep more than half of its land, I think this is eminently reasonable.

Also, while we are at it, I propose that half of Romania be given to the gypsies, half of Iran be given to the Zoroastrians, half of Oman be given to the Yazidis and the southern tip of Florida be given to the Seminole Indians.

If you deny any of this, you are a racist and worse than Hitler.

[oberliner]

25. I'm sorry that you feel that Barack Obama is a bigot

You will note that Palestinians did not have an independent state prior to Israel's founding. The Palestinian Arabs were under the rule of a colonial power.

The Palestinian Arabs ought to have been liberated from that rule and granted an independent state next to an independent Jewish state.

I'll try to read up on the Assyrian self-determination movement. If there is in fact a continuing genocide against them in Iraq then certainly I would be in favor of their having an independent homeland.

I think that is something that is long overdue for the Kurds, incidentally.

[shaayecanaan]

27. The Seminole Indians didnt have a state either...

nor did the Australian Aborigines, or the First Nations in Canada, or the Zulu or Sotho-speaking peoples in South Africa.

The argument that Jews were entitled to build a state in Palestine because no internationally-recognised state was there previously is reminiscent of what Australians and Canadians used to call "terra nullius" or "empty land". That meant that both Australia and Canada were settled, rather than conquered. The distinction is that in a conquest, prior title to lands survives unless it is specifically extirpated by the conquering party. The notion of terra nullius was overturned by the High Court of Australia and is now regarded here as a racist relic.

I'll try to read up on the Assyrian self-determination movement. If there is in fact a continuing genocide against them in Iraq then certainly I would be in favor of their having an independent homeland.

Really? And which lucky country is going to have to give up territory to make way for an Assyrian state? Presumably not Israel, and not Europe either. I suppose its going to be one of the loser countries (again)? I suppose you're indicating that Iraq should give up territory, but seeing that the Palestinians did penance for the holocaust, in the spirit of fairness maybe Germany or Poland should host the new Assyrian state. Or Chicago, seeing as that is where the Patriarchate of Assyria is now based.

Kurdistan covers about 25% of Turkey today. Good luck with getting them to give that up. Or you could just invade them, I suppose. There's precedent for that.

[oberliner]

28. How would you have resolved the issues facing the Jewish people in the 1940's?

As you have made your strong opposition to the founding of the state of Israel crystal clear, what steps might you have taken to address the concerns that many Jewish people around the world were raising regarding the need for an independent Jewish state in light of the increasingly unpleasant situation that many Jews were finding themselves in at that time?

[shaayecanaan]

29. Offer them a state in Germany or Poland...

I suppose the modalities would have been difficult, given the fact that the Soviets were in charge of East Germany and Poland. But I doubt that the Soviets would have been interminably opposed.

Either that or offer the remaining European Jews asylum in Canada, the US, or Australia. Given that most South African Jews (successfully) migrated to those countries in preference to Israel, and most Soviet Jews would probably have preferred that option had it been available to them, this would have been a much better solution to the problem. It would have saved a hell of a lot of trouble, anyway.

[oberliner]

30. Thank you for sharing your perspective

I do genuinely appreciate your willingness to present your point of view even though we do not agree.

Out of curiosity, what is your ideal vision for what Israel/Palestine ought to look like today? (Apologies if you've already answered this before)

[shaayecanaan]

34. Not a problem...

Out of curiosity, what is your ideal vision for what Israel/Palestine ought to look like today?

An independent Palestine based on the 1967 borders, plus the Gaza extension that was offered by Olmert in the last offer. In exchange, Western countries agree to offer citizenship to 250 000 Arab Israelis over a ten-year period. Britain, being the country mainly responsible for the dispossession of the Palestinians, should feel obliged to take on at least some Arab migrants.

Any settlers in the West Bank can either remain as Palestinians or return to Israel. Palestine is likely to have to absorb up to a million refugees from Arab states. Re-absorbing 300 000 of their own citizens is the least that Israel can do.

The cost of resettling the refugees should be paid by Israel. Given that Canada and Australia have absorbed large numbers of Lebanese refugees without incident, it shouldnt be too hard to absorb a few thousand Palestinians every year. And if evangelical Christians really love Israel, then surely it isnt too much to expect them to absorb a few Arabs for Israel's sake?

[oberliner]

36. What happens with Jerusalem?

Does the entirety of the part of Jerusalem that was occupied by Jordan prior to 1967 become part of the Palestinian state?

Including the Western Wall and the Jewish Quarter?

[shaayecanaan]

39. My impression of the Taba talks...

was that both of the sides were willing to postpone the issue of the Old City, and that the Palestinians were willing to agree to the status quo in the meantime. Ultimately I don't think it has much bearing on the long-term viability of either state.

[Donald Ian Rankin]

77. Allow them to settle in America, the UK, France or similar.

A perfect solution? No. Immeasureably better than any of the alternatives, though.

It wouldn't have *satisfied* the zionists, but it would have been more than enough to guarantee their rights.

[FarrenH]

Thank you shaayecanaan

The position you're responding to has always struck me as incoherent (unless someone really does support the wholesale fragmentation of large swathes of the world for the reasons given - I know people who do).

[shaayecanaan]

40. That's always been my impression...

I can understand (though not agree) with a religiously motivated person saying that the conquest of Palestine was biblically mandated. The secular, alternative version has always struck me as rather dodgy.

As Donald said in his post above, the state of Israel is a practical reality and pragmatically the Arab states are going to have to resign themselves to it (and in fact have acknowledged their willingness to do so). I don't think it follows from there that Arabs, or anyone else, should accept that the foundation of Israel (or any post-colonial state) was a just enterprise.

[Dick Dastardly]

35. Let me get this straight, You are saying that during the mandate .....

Even though Jews were natives as well, the land was Palestinian.
The recent Arab settlers are no problem, are legitimate to settle there and are Palestinians but recent Jewish settlers who buy land are ilegitimate, are engaging in ethnic cleansing and committed crimes against humanity.
This is all true despite the fact that studies in the period like the Peel Commision Report say different including that Arabs were not being displaced or ethnically cleansed as you put it.(I can link them if you want)

Is that about right?

[FarrenH]

41. In fact even the purchasing of land was oppressive and colonial in nature in most cases

When Zionists started buying up land in what was to be Israel and was then part of Turkey, their pattern was crudely racist - buy land from wealthy Arab landowners then evict impoverished Arab tenants, while of course quite open to renting to Jewish tenants. IOW, the land was legally bought, but the purchases nonetheless had the express purpose of FORCING Arab peasants off land. The fact that it was legally purchased did not obviate the ethnic exclusivism. In most modern, democratic states this kind of ethnic bias is proscribed in law, even in situations of free trade. Note proscriptions against various discriminatory practices with similar aims in the southern states of the US. In my own country, you cannot rent land out and refuse tenants on the grounds of ethnicity because its obviously regarded as racist.

Conversely, in the 19th century there was no evidence of such a dynamic in reverse (widespread discrimination against Jewish tenants by Arab landowners).

As late as 1914, newspapers like (the anti-Zionist) Falistan were publishing circulars like this: "Ten years ago the Jews were living as Ottoman brothers loved by all the Ottoman races... living in the same quarters, their children going to the same schools. The Zionists put an end to all that and prevented any intermingling with the indigenous population. They boycotted the Arabic language and the Arab merchants and declared their intention of taking over the country from its inhabitants"

Note the tone and distinctions being used. in popular late 19th century and early 20th century Arab dialog clear distinctions were still being drawn between "Jew" and "Zionist", the latter being seen as essentially racist and colonial.

And it was. The foundation of Israel was essentially the last major European colonial enterprise, conducted in the main by Zionist European Ashkenazi Jews. Subsequent to that early colonising which initially consisted of legal purchases combined with racially discriminatory business practices, the colonial enterprise has only become more explicitly discriminatory in nature, with direct theft and colonisation of land by military force. Arab responses to that, while often misguided and themselves wrong (displacing Jews), must be recognised as RESPONSES to colonisation and discrimination. There is not a 1 to 1 moral equivalence. And both the colonial project and the continued support of western powers for it played a huge role in fostering the virulent anti-semitism that began growing in the region in the early 20th century.

So your facile reconstruction of the arguments being put to you is in fact hopelessly inadequate. And the posters above who pointed out that we can accept the inevitability of the present state without accepting the legitimacy of its origins are on the side of historical fact (or vice versa).

And this is not the early 20th century, when explicit racial discrimination in some form was accepted as quite normal by many of the world's nations, even as they decried it in other forms. While it would be absurd to demand some reversal of the Norman conquest in England or the colonial effort in the USA because of facts on the ground, it is certainly not absurd to reject a contemporary effort to CREATE facts on the ground, where people have living memory of dispossession and oppression as well as presently suffering the direct consequences of it. The entire freaking world, including Israel (when they ratified the Geneva convention) has agreed that, going forward, we should resist such efforts. So its quite reasonable to accept as inevitable the fact of a largely Jewish state in Israel today, while bitterly opposing the colonial effort in the West Bank and the Apartheid that has been set up to sustain and protect it.

[LeftishBrit]

46. Should the UK have been founded?

If I had to give an answer, my answer is No. At least, not in the way it was, on the basis of the brutal conquests of Irish, Scots and Welsh. But it doesn't change anything *now*. We can't just go back hundreds of years and go back to square one. I don't even support the current nationalist movements in the UK (though I do support devolution)- what is done is done, and trying to undo it would do more harm than good.

Similarly, it's not really relevant whether Israel should or should not have been founded. It does exist, and whatever solution has to take that into account, if we do not want violent war.

'The occupation should continue' is anti-Palestinian bigotry. 'Israel should/should not have been founded' is simply irrelevant IMO.

[Donald Ian Rankin]

60. Bits yes, bits no.

I know relatively little about the unification of England and have no strong feelings about the Norman conquest.
The English conquest of Wales looks unjust to me, but again I'm no expert.
The union of England/Wales and Scotland was one of the few occasions of a change of national boundaries I think was a good thing.
The British conquest of Ireland was an atrocity.

[Dick Dastardly]

31. please explain your comment

"As to "double standards", there is no other first-world country that has been carrying out a military occupation of a neighbour, very much against the will of the citizens of that state, for the past 60 years, so there is no real point of comparison."




also in regard to this comment

"Israel does, now, have a right to continue to exist, but it most certainly should never have been founded, and that right is based mostly in the last 67 years, slightly in the 100 before that, but not at all in the preceding three millenia as many zionists would like to claim."

Have you ever heard the term "Next Year in Jerusalem" said every year at Passover.


also in regard to this comment

"Modern Israel is a colonial state that shares a name with biblical Israel, not biblical Israel reborn, and the vast majority of Israeli Jews are recent settlers, not returning natives."

Many of the Palestinians were recent settlers too but that is no problem to you I see

[FarrenH]

33. "Many of the Palestinians were recent settlers too but that is no problem to you I see"

Only because you fail to comprehend that the original poster was not describing settlement qua settlement as a problem, but settler's claims to rights from antiquity as a problem. Its simple enough.

[Dick Dastardly]

37. That holds no water

Besides the fact nothing like that was stated in what he was commenting on.

and besides the fact how does what someone believes make them less legitimate? If they believed they had a right to the moon would that make them more or less legit, how about someone who believes the whole planet is their right. None of that changes they are both recent settlers, how doees what they believe change this? Many Arabs also believed in some devine right, like the Mufti and his followers as one example



The fact is your plain wrong, the Zionists of the mandate era were secular and did not claim rights from antiquity.

[FarrenH]

38. I'll agree with one of your comments

"Besides the fact nothing like that was stated in what he was commenting on."

His comments were about modern religious zionists in the settler movement, so they were accurate, but on second reading I can see that they weren't relevant to the post being responded to.

[Donald Ian Rankin]

64. I say those words every year, and add "kayn aynorah".

"Next year in Jerusalem" is evidence that Jews wanted Jerusalem. It is *not* evidence that they had any legal or moral right to it whatsoever.

As to many of the Palestinians being recent settlers, I point you to the fact that the population of Israel was 90% Palestinian in 1900, still 70% Palestinian in 1946, and 17% Palestinian in 1948. So while it's undoubtedly true that many of the Palestinians come from families that had been living there for less than a century, it's also undoubtedly true that the vast majority of the indigenous inhabitants are Palestinians.

I'm not sure what explanation you want for my first comment - it seems perfectly self-explanatory to me.

[shira]

73. indigenous Palestinians

what do your numbers say about all Arabs within Palestine from before 1900 up until 1948? My numbers say the Arab population remained about the same in that area for several centuries (no more than 250,000) but when Jews came and built up the area and opportunity presented itself, many Arabs came into that region for economic reasons - so outside of the original 250,000 all the rest are NOT indigenous to the region, no more than the Jews who came there around the same time.

[DU GrovelBot]

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[shira]

75. Swedish government disagrees with embassy in Israel

http://www.ynetnews.com/articles/0,7340,L-3764774,00.html

just when you thought leading Swedish officials couldn't get any lower.

:eyes:

[aranthus]

76. They just dig the pit a little deeper.

This isn't about free speech and the Swedish government knows it. No one is asking the the paper be shut down or censored. People are merely using their own right of free speech to criticise what the paper did in printing this article.

[FarrenH]

79. Their response is inexplicable

Why not acknowledge the obvious and condemn the paper?

[LeftishBrit]

80. Not inexplicable; but cowardly

I am quite sure that the Swedish government doesn't agree with this crap. But few Europaean governments want to crack down on the popular tabloids. It's the same here in the UK; the government are very reluctant to attack the Sun or the Daily Mail - if they did, the papers would whip up a frenzy among their readership about how freedom of the press was being suppressed by the 'Evil Nanny State, Just Like Nazi Germany'!

I do not approve of governments suppressing or controlling the media - but occasionally it reaches the point of the tabloids, if not actually controlling the government, at any rate scaring it. For that matter, how readily would the US Congress stand up to Rush?

[shira]

84. Sweden denies Israel request to condemn IDF organ harvest article

http://www.haaretz.com/hasen/spages/1109008.html

Just goes to show that the State for Jews can be defamed and demonized with impunity.

No western govt. would allow their mainstream press to similarly demonize and defame Arab govts. without a strong rebuke - for example, the Muhammad cartoon controversy.

[Donald Ian Rankin]

85. Which governments condemned the Jyllands-Posten? N.T.

[LeftishBrit]

87. So far as I know, no government did condemn the paper for publishing the Mohammed cartoons.

Muslim groups protested against it (some of them to a very extreme degree) but I don't think that the Danish or other governments did. I could be wrong.

[stranger81]

89. Why is everyone in here arguing with the dining room table again?

:shrug:

[FarrenH]

90. lol

you have a point

[stranger81]

91. as Trent Reznor would say,

"I tried . . . I gave up."

[shira]

92. Western Governments Fund Blood Libel

from HARRY'S
http://rpc.blogrolling.com/redirect.php?r=1c4f7096eec9b7e40b82bcef8b61ad5b&url=http%3A%2F%2Fwww.hurryupharry.org%2F

The Jerusalem Post reports:

Israeli daily Ma’ariv reported Sunday that Bostrom’s 2001 book Inshallah, which deals with the Israeli-Palestinian conflict and reportedly included the allegations of organ harvesting, was financed - among other bodies - by the Swedish Foreign Ministry. There has been no response to the claim so far.
]
Also:

The Bethlehem-based Palestinian news agency Ma’an published a report over the weekend which it said confirmed allegations that IDF soldiers kill Palestinian civilians to harvest their organs.

The charges appeared last week in Sweden’s left-leaning Aftonbladet newspaper and have since been widely quoted in Palestinian and Arab newspapers.

“They plunder the organs of our sons,” read the headline in Sweden’s largest daily newspaper, which devoted a double spread in its cultural section to the article.

Ma’an, which is funded by Denmark and the Netherlands, headlined its feature: “Disappearances, Holding Bodies, Organ Theft - Intertwined Crimes.”

But is it really any surprise?

Norway’s government, with the royal family’s blessing, is currently rehabilitating with a national celebration and museum in his honor Knut Hamsen, the Hitler groupie who in 1943 gave his Nobel Prize to Propaganda Minister Josef Goebbels.
]
While Sweden, where a few years ago a third of young people doubted there was a Holocaust, has enabled Moroccan expatriate Ahmed Rami - whose Radio Islam is a 22-language flagship of Holocaust denial, Jew-hatred, and demonization of Israel - to poison the well of non-Muslim as well as Muslim public opinion.

Far from being “free speech in action,” Sweden’s anti-Israel hatred is too often subsidized by the government. A recent report by the respected NGO Monitor shows that the Swedish International Development Cooperation Agency (SIDA), Diakonia, the multi-national NGO Development Center (NDC), and the Swedish Mission Council (SMR) fund 20 major NGOs that “routinely accuse Israel of ‘genocide’, ‘ethnic cleansing’, and ‘apartheid’, and some compare Israeli military and political officials to Nazis.” As Professor Gerald Steinberg puts it, “The path from this demonization to the blood libels of Aftonbladet is short and direct.”

Along with recent HRW revelations with their Saudi connections, it appears momentum is gaining and masks are slipping in both the MSM and in many NGOs.