Applicability of the Crime of Apartheid to Israel
by Karine Mac Allister
© 1998-2008 badil.org
Part 3:
Apartheid across the Green Line and Boundaries
Zionist Jewish Israelis, the group that forms and controls the Israeli government, has 'legalized' a system of institutionalized racial discrimination against Palestinian nationals which intends to establish and maintain domination of Zionist Jewish Israelis over Palestinian nationals. Although the legal status of the territory of Israel and the OPT differ, some of the most fundamental laws and institutions of Israel are applied to and work in both areas indiscriminately, affecting all Palestinian nationals, including those who have been displaced outside the boundaries of these areas, i.e. refugees. As Miloon Kothari, former UN special rapporteur on the right to housing, concluded "essentially, the institutions, laws and practices that Israel had developed to dispossess the Palestinians (now Israeli citizens) inside its 1948 border (the Green Line) have been applied with comparable effect in the areas occupied since 1967."37
While the following section deals with the geographic continuity of Israel's crime of apartheid in that it affects Palestinian nationals regardless of their location, it is important to note that particular apartheid laws, policies and practices listed in the Apartheid Convention and violated by Israel often have different effects on different segments of the Palestinian group. For instance, denial of the right of return (listed as an apartheid policy and practice in Article II(c) of the Apartheid Convention) disproportionately targets Palestinian refugees and internally displaced persons whether they live in a refugee camp in Lebanon or Gaza or in a city near their original village in Israel; while the restrictions of Palestinian freedom of movement prevent citizens of Israel from entering Gaza and "Area A" in the West Bank and Palestinian with West Bank ID from crossing the Green Line and moving within the OPT. A central point to keep in mind in what follows is that regardless of the variation in the ways in which Israeli apartheid affects different segments of the Palestinian population, since it is the same state operating on behalf of the Zionist Jewish Israeli group that is implementing these laws, policies and practices with the clear goal of establishing and maintaining the domination of that group in Israel and the OPT, then it is inaccurate to consider the violations as limited to one area; a mistake made by many in limiting their analysis of Israeli apartheid to a particular geographic area or a particular segment of Palestinian society. As Oren Yiftachel argues, the "common scholarly and political attempts to portray the existence of Israel proper within the Green Line, as "Jewish and democratic," are hence both analytically flawed and politically deceiving."38 He suggests that "the entire area under Israeli control - that is, Israel/Palestine between river and sea - should be analyzed as one political-geographic unit." 39 Central to such an analysis are the people displaced and denied return to this political-geographic unit.
The systematic nature of racial discrimination - the intent and plan to distinguish, exclude, dominate, and oppress on grounds of nationality - is embodied in a number of Israeli laws, policies and practices driven by political Zionism. Among these laws, policies and practices are the numerous plans of population transfer developed by Zionist Jewish Israelis to transfer - either internally or externally - Palestinian nationals from Israel and the OPT and prevent the return of those who have been displaced.40 These plans include Plan Dalet, the military plan implemented in 1948 which aimed to expand the Jewish areas beyond those allocated by the United Nations in the 1947 Partition Plan (Resolution 181) and remove Arab/Palestinian presence from these areas; the Allon Plan, which aimed to annex as much Palestinian land as possible immediately after the 1967 occupation of the West Bank and Gaza, the central motto of which was "maximum security and maximum territory for Israel with the minimum Arabs"; and, the Dayan Plan, which aimed to facilitate Israel's control over lands in the OPT and developed by Moshe Dayan, who explained "it is also important for ourselves to emphasize that we are not foreigners in the west Bank. Judea and Samaria is Israel and we are not there as foreign conquerors but as returners to Zion."41
It is beyond the scope of this article to examine the entire regime that sustains apartheid in Israel and the occupied Palestinian territory. It suffices to say that a number of laws, policies and practices fundamental to the state of Israel amount to systematic institutionalized racial discrimination for the purpose of establishing and maintaining the superiority of Zionist Jewish Israelis over Palestinians.42
Among these laws is the 1950 Law of Return, which stipulates that all Jews in the world are considered nationals of the state and can acquire Israeli citizenship.43 Palestinians (non-Jews) are subject to the 1952 Citizenship and Entry into Israel Law, which limits eligibility for Israeli citizenship to non-Jews who were present in the territory of Israel between 1948 and 1952 and their descendents. This law excludes and de facto de-nationalizes Palestinian refugees who were displaced in 194844 while any Jew around the world can "return" to "Israel," including the occupied Palestinian territory. Combined, the Law of Return and the Citizenship Law form the basis of a regime of systematic discrimination; it creates a superior status- Jewish nationals - and an inferior status - ‘non-Jews' composed mainly of Palestinians. This regime discriminates against Palestinians, in particular Palestinian refugees, on grounds of nationality. John Quigly concludes that "by discriminating against the indigenous inhabitants, both those who were displaced and those who were not, the two statutes constitute apartheid legislation."45 In addition, the Israeli parliament, the Knesset, recently passed the Ensuring Rejection of the Right of Return Law, which provides that the refugees, including those displaced in 1967 from the West Bank and Gaza Strip, will not be returned unless approved by an absolute majority of ministers.46 The Knesset has also passed a temporary amendment to the Citizenship and Entry into Israel Law which suspends the possibility of granting Israeli citizenship and residence permits in Israel, including through family reunification, to residents of the Occupied Palestinian Territory.47 These more recent laws were passed with the intent to maintain a demographic Jewish majority in Israel and the OPT and to protect this advantage by denying the rights of Palestinians to return and to family reunification.
Moreover, in the OPT, two legal systems apply. The Israeli delegation at the review of the state of Israel by the Committee on the Elimination of Racial Discrimination verbally confirmed that two legal regimes apply in the OPT: Jewish people are subject to Israeli law (Israeli Basic Law) while Palestinians are subject to a complex mixture of Ottoman, British, Jordanian law and Israeli military orders.48 In other words, Israel applies Israeli law extra-territorially - wherever an Israeli citizen goes in the OPT, Israeli law follows. As Golda Meir said "the frontier [of Israel] is where Jews live, not where there is a line on the map."49 This reality creates a two tier legal system clearly constituting discrimination on national grounds against Palestinian nationals in and from the occupied Palestinian territory.
Para-statal institutions such as the Jewish Agency (JA) and the World Zionist Organization (WZO), which includes the Jewish National Fund (JNF), the United Israel Appeal, and other corporations or institutions owned and controlled by the WZO50 and the governmental Israel Land Administration ensure Jewish immigration and control and manage approximately 92 percent51 of land in Israel. These organizations are para-statal in that "the exclusivist constitutional stipulations of the WZO, JA and JNF (for Jews only) are incorporated into the body of the laws of the State of Israel through a detailed sequence of strategic Knesset legislation..."52 The Constitution of the Jewish Agency stipulates that "land is to be acquired as Jewish property and... the title of the lands acquired is to be taken in the name of the JNF to the end that the same shall be held the inalienable property of the Jewish people. The Agency shall promote agricultural colonization based on Jewish labor, and in all works or undertakings carried out or furthered by the Agency, it shall be deemed to be a matter of principle that Jewish labor shall be employed."53 The Jewish Agency and World Zionist Organization are part of the state of Israel. Their mandate and relationship is enshrined in the 1952 World Zionist Organization and Jewish Agency Status Law; the 1953 Keren Kayemeth Leisrael (Jewish National Fund) Law; the 1954 Covenant between the Government of Israel and the Zionist Executive; the 1961 Covenant between the Government of Israel and the Jewish National Fund; the 1971 Covenant between the State of Israel and the World Zionist Organization.
The Israeli Knesset (parliament) and the WZO/JA signed the 1952 World Zionist Organization and Jewish Agency Status Law, which stipulates:
"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 effort 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 [Jewish] people..."54
The Memorandum of Association of the JNF as incorporated in Israel in 1954 defines its primary goal as "to purchase, acquire on lease or in exchange, etc,... in the prescribed region (which expression shall in this Memorandum mean the state of Israel in any area within the jurisdiction of the Government of Israel) or any part thereof, for the purpose of settling Jews on such lands and properties."55 The JA and WZO "enjoy a legal right to discriminate in favor of Jews"56 because their control over the land ensures the basis of the "national Jewish home" or Eretz Israel.57 In a new Covenant between the Jewish Agency and World Zionist Organization in 1971, a division of labor on a geopolitical basis was agreed whereby the JA is active in Israel whereas the WZO is active in all member states of the UN and the OPT. "Subject to this arrangement, the Settlement Division of the WZO, funded by the government of Israel and/or by non-tax-exempt donations, is active in the 1967 occupied territories, whereas the Israel department of the JA, funded by various tax-exempt Zionist appeals, is active inside the state of Israel."58 In the OPT, over 40 percent of the land in the occupied West Bank is under the control of Jewish settlements and related infrastructure, and no longer accessible to Palestinians.59 It is therefore undeniable that the Jewish Agency and the World Zionist Organization operate in both policy and practice for the exclusive benefit of Jewish nationals in Israel and the OPT, and work as para-statal organizations that implement and administer apartheid policies and practices on behalf of the Israeli state.
In order to acquire land, a number of laws and measures were enacted. These include for instance the 1943 Land (Acquisition for Public Purposes) Ordinance and the 1950 Absentee Property Law.60 The latter allows the state to acquire the lands of Palestinians displaced during the Nakba. Under this law, displaced Palestinians are considered ‘absentees,' defined as any person, who before September 1948, was out of the country in an area under the control of the Arab League Forces, or who had left his or her normal place of residence during the period prescribed in the law, or who, between 29 November 1947 and the date of coming into effect of this law, was otherwise deemed ‘absent.'61 While not overtly discriminatory, the term ‘person' in the law is interpreted as not including Jews.62 This law applies to Palestinian refugees and internally displaced persons (IDP) in Israel, who are considered ‘present absentees' (physically present but absent under the law). Lands confiscated under this law were transferred to the state's Custodian of Absentee Property. A similar regime exists in the OPT, whereby confiscated lands are transferred to the Custodian of Governmental and Abandoned Property in Judea and Samaria (i.e. occupied West Bank) under a number of military orders such as the 1967 Military Order 58, Order Concerning Absentee Property (Private Property). Under this order "property whose legal owner, or whoever is granted the power to control it by law, left the area prior to 7 June 1967 or subsequently"63 is declared absentee or abandoned property. The property is transferred to the Custodian who acquires all rights previously vested with the owner.64
"Theoretically and legally, the 'Custodian' is entrusted with protecting the property and assets of ‘absentees' until they return to reclaim their rights. In practice, however, and because Israel has consistently barred the repatriation of refugees, the ‘Custodian' in the West Bank functions very similarly to his counterpart inside Israel. Essentially, the former facilities the transfer of 'absentee properties' (especially lands) to Jewish control and thus prevents the rightful Palestinian owners from pressing claims to their own lands and properties." 65
The 1950 Absentee Law and the Military Order 58, Order Concerning absentee Property (Private Property) violate the prohibition against the expropriation of landed property belonging to a racial group.66 In other words "Israeli legislation excludes the indigenous population from the settler's land but does not exclude the settlers from the indigenous land."67
In addition to Israel's apartheid legislation, the state also enforces practices of physical separation and segregation. For instance, the Israeli government has a policy of house demolition and forced eviction of Palestinians in Israel and the OPT, in particular in areas which Israel aims to acquire, such as Area C, eastern Jerusalem and the closed area between the Wall and the Green Line in the West Bank, and the Naqab (Negev), Jaffa and the Galilee.68 Miloon Kothari, UN Special Rapporteur on housing, found that "the demolitions ordered either for lack of permit or another pretext have a military dimension and a gratuitously cruel nature."69 The Committee against Torture in its review of Israel concurred and expressed concern that "Israeli policies on house demolitions ... may, in certain instances, amount to cruel, inhuman or degrading treatment or punishment."70 The policy of the government of Israel to destroy Palestinian houses clearly denies the right to dignity and freedom from torture, inhuman or degrading treatment or punishment. In the OPT the Wall and its associated regime clearly have the purpose and effect of separating Jewish Israelis from Palestinians, the acquisition of Palestinian lands for Jewish-only colonies and related infrastructure and the establishment of a Jewish majority on these lands.71 The International Court of Justice, a number of UN Human Rights treaty bodies, independent experts and the International Committee of the Red Cross concluded that the construction of the Wall causes forced displacement and amounts to population transfer.72
In Israel, Palestinians displaced beyond the borders of the new state of Israel were intentionally and systematically barred from returning. In the 1948-1966 period, Israel maintained and expanded on the British Mandate system's emergency laws directing them exclusively at the Palestinians who managed to stay within the nascent state's borders. These emergency laws involved restrictions to mobility, arbitrary military governance that involved the governance of the Palestinian citizens under military laws while Jewish Israeli citizens were governed under civil laws. The central aim of these laws was clearing the land of its indigenous inhabitants for the purpose of transferring title of the land to the state and international Zionist agencies.73 The policies and practices used by Israel in the administration of Palestinians in the OPT are a clear extension of the 1948-1966 military governance regime.
In Israel, national planning laws and master plans have a similar effect in particular in the Naqab, Jaffa and the Galilee, where there are still large numbers of Palestinians. For instance, Palestinian Bedouin in the Naqab live in villages that predate the establishment of the Israeli state but are ‘unrecognized' under the 1965 Planning and Building Law. This law re-zoned communities and areas where building and construction is permitted and rendered illegal any building or habitations outside these zones, and therefore subject to demolition.74 Israel does not provide these villages access to basic services, frequently fumigates their lands with poisonous chemicals and subjects the houses in these areas to demolition, taking control of the land for so-called Jewish development projects.75 The displaced residents are forced to relocate to one of seven planned ‘concentration' towns- the equivalent of reservations - where they are circumscribed to minimum space, completely inadequate for their nomadic and pastoral way of life.76 In a recent report, Human Rights Watch concluded that "discriminatory land and planning policies have made it virtually impossible for Bedouin to build legally where they live, and also exclude them from the state's development plans for the region. The state implements forced evictions, home demolitions, and other punitive measures disproportionately against Bedouin as compared with actions taken regarding structures owned by Jewish Israelis that do not conform to planning law."77 According to Human Rights Watch, "the state's motives for these discriminatory, exclusionary and punitive policies can be elicited from policy documents and official rhetoric. The state appears intent on maximizing its control over Naqab land and increasing the Jewish population in the area for strategic, economic and demographic reasons."78 The policy of the state of Israel towards Palestinians in Israel prevents their full development by denying them their right to freedom of residence and adequate standard of living and amounts to policies and practices designed to divide the population along racial or ethnic lines by the creation of separate reserves for Palestinians.
In addition, the few 'mixed' communities in Israel, such as Ramle and Lydd, have walls and earth embankments that separate the Jewish and Palestinian residents. The municipalities and the Israeli government often describe these separations as "acoustic walls" aimed to prevent noise coming from Palestinian neighborhoods, burglaries and the free passage of drug addicts. They were however more accurately described by the secretary of Moshav Zvi as measures aimed to block both physical and eye contact between the two communities.79 The UN Committee on the Elimination of Racial Discrimination expressed deep concern about the fact that Israel maintains separate "sectors" for Jews and Palestinians and recommended that Israel assess to which extent this may amount to racial segregation and avoid separation of communities.80 Measures such as house demolition, forced eviction and displacement, walls designed to divide the population along ethnic or racial groups, the result being the creation of separate reserves and ghettos for Palestinian nationals thus violating the Apartheid Convention.
Applicability of the Crime of Apartheid to Israel
The Crime of Apartheid under International Law
Applicability of the Crime of Apartheid to Israel
Apartheid across the Green Line and Boundaries
Conclusion
Apartheid Notes