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Israeli Apartheid and Palestine Grievances

3 May

Israeli Apartheid and Palestinian Grievances

[Prefatory Note: Correio Braziliense Interview Questions from Rodrigo Craveiro (IV/27/2021) in response to Report of Human Rights Watch on Israeli Apartheid; it is followed by myresponses to questions of Zahra Mirzafarjouyan on behalf of Mehr News Agency in Tehran, addressing some of the underlying causes of Palestinian grievances.]

1- In the 213-page report, HRW accuses the Israeli authorities of crimes against humanity of apartheid and of persecuting the Palestinians. What do you have to say about it?

For a mainstream and highly respected NGO such HRW to make such accusations, backed by extensive documentation, is a major development, almost unthinkable a few years ago. There will certainly be hostile reactions from Israeli sources and governments supporting in Israel but many consequences will follow adverse to Israel. It is notable that this HRW Report came just months after the principal Israeli human rights NGO B’Tselem issued a similar bombshell report that also concluded that Israel was guilty of the crime of apartheid.

Although apartheid originated with the racist regime in South Africa the international crime of apartheid need not resemble those structures of white supremacy. It stands on its own.

It is also highly significant that the finding of apartheid pertains not just to occupied Palestine, but to Israel itself, or to the entirety of Palestine as it existed under the British mandate, that is, from the Jordan River to the Mediterranean Sea. This extended scope of criminality is explained not only by references to the similarity of discriminatory practices, but also by Israel annexationist moves against Jerusalem and the West Bank.

2- How do you see the use of the term “apartheid” for the situation in the Palestinian territories?

It is has been increasingly recognized by independent expert observers that the interplay of the Israeli state and the Palestinian people satisfies the core features of the crime of apartheid. The Israel Basic Law of 2018 made explicit the claim of Jewish supremacy by vesting the right of self-determination exclusively in the Jewish people.

It should be understood that the allegation of apartheid is based on the core feature of the crime, which is domination, systemic discrimination, and victimization so as to sustain Jewish supremacy over the Palestinians under their control. Apartheid is defined in the HRW Report by reference to comprehensive racial domination of Jews over Palestinians and in Article 7(j) of Rome Statute governing the International Criminal Court as one type of Crime Against Humanity. The most authoritative definition of apartheid from the perspective of international law is to be found in Article II of the 1973 International Convention on the Suppression of the Crime of Apartheid, which is reprinted in full because of its importance:

Article II 

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; 

(f) Persecution of organizations and persons, by depriving them of fundamental rights and freedoms, because they oppose apartheid. 

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It is clear that there is no legal requirement that Israeli apartheid resemble South African apartheid. The policies and practices may vary with national conditions, but it makes no difference so long as the core reliance on discriminatory practices to maintain racial or ethnic supremacy is present. 

The HRW Report specifies the kinds of systemic discrimination that has been undertaken by Israeli apartheid to maintain Jewish domination and to secure Palestinian subordination. Among the principal policies and practices constituting Israeli apartheid are as follows: confiscation of Palestinian land; discriminatory issuance of building permits; restrictions on movement; manipulation of residency rights; discriminatory budgeting of public services; closure of Gaza; 99.7% conviction rate in Israeli military courts prosecuting Palestinians living under occupation.

3- The report recommends the prosecution of the International Criminal Court to open an investigation against the State of Israel for crimes against humanity and apartheid. How do you analyze this?

It is a simple matter. The HRW Report found overwhelming evidence of discriminatory practices based on the dual identities of Jew and Palestinian that seemed to establish a strong case for alleging apartheid as a Crime against Humanity under the Rome Statute. Israel is not a Party of the Rome Statute, and hence crimes on its territory are not within the jurisdictional reach of the ICC. However, Palestine is a Party, and as a result the ICC has legal authority to inquiry into alleged crimes committed on occupied Palestinian territories since Palestine became a Party,, which covers the West Bank, East Jerusalem, and Gaza. As it happens, the ICC decided earlier in 2021 that it possesses this authority to conduct criminal investigations of occupied Palestine with respect to Israeli crimes in violation of the law of war arising out of its military operations in Gaza back in 2014, its uses of excessive force in responding to Great March of Return in 2018, and its unlawful settlement activity in the West Bank and East Jerusalem.

Whether this will actually happen is problematic. The United States not only backs Israel in the contention that the ICC lacks authority to proceed against non-Parties, but has its own complaint arising from an investigation of its crimes in Afghanistan and some secret black sites in Europe where torture is alleged to have occurred of Afghan detainees. The ICC is a fragile international institutional with severe funding challenges that partly reflect the geopolitical

pressure it has come under in recent years since it began challenging the impunity of Western states. Whether the UN follows the recommendation of HRW to set up a commission of inquiry is more uncertain. It could happen despite furious opposition by Israel and its supporters, but if as is likely the findings and recommendations were similar to those of the HRW, it seems almost certain that their implementation will be effectively blocked, This has been the fate of the several UN formal inquiries into Israeli wrongdoing, most prominently the Goldstone Commission investigating the violations of the law of war during the Israeli attack on 
Gaza in 2008-2009. All these reports confirmed Israeli wrongdoing, yet all were blocked when it came to carrying out the policy recommendations.

And yet this report, and the trend to acknowledge credibly on the basis of evidence and legal analysis that Israel is an apartheid state is of lasting importance. It will spread and intensify the solidarity efforts of pro-Palestinian groups throughout the world. It will make it hard to smear such efforts as anti-Semitism. It will strengthen the resolve of Palestinian resistance. In years to come we may look back on this day when HRW issued its report as the turning point in the struggle. It is time to declare Palestine as the victor in the Legitimacy War for the control of the legal and moral discourse, the symbolic battlefield where many of the prolonged struggles of the last 75 years have been won and lost. 

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Questions of Zahra Mirzafarjouyan, International Department, Mehr News Agency  (May 1, 2021) on failures of to protect the basic rights of the Palestinian people.]  

 
  1. Have international organizations been successful in addressing the human rights situation in Palestine? If so, why are Israel’s human rights abuses still continuing?

International organizations, particularly the United Nations, has a mixed record when it comes to dealing with human rights violations in Palestine. The UN, especially the Human Rights Council, has a generally good record in identifying violations and recommending remedies. Such delimitations of Israeli behavior are important in validating Palestinian grievances and justifying international solidarity efforts. Unfortunately, this symbolic verification of wrongdoing with respect to human rights is not substantively implemented. All efforts to enforce human rights are

blocked by geopolitics, and particularly the United States. This interference takes various forms, including shielding Israel from accountability by the use of the veto power entrusted to the five Permanent Members of the Security Council.

In addition, Israel has defied the findings and recommendations of international organizations that have found it responsible for serious violations of international human rights standards and the norms of international humanitarian law without suffering from adverse consequences. Israel defends itself not by substantive claims that it has been falsely accused, but by contending falsely that its critics are guilty of antisemitism.


2. Why are most UN Security Council resolutions against the Israeli regime vetoed by the United States?

The United States has interpreted its ‘special relationship’ as obliging it to shield Israel from criticism at the UN and to block the implementation of any moves to hold Israel accountable. Partly the US Government takes such a position because of its strategic interests in the region and partly as a reflection of well-organized pro-Israeli lobbying,

which has been very effective with the US Congress. The UK and France, and the EU generally, have also supported Israel at the international level, although not as strongly as the US.



3. Which governments do you think play the biggest role in violating Palestinian rights?

It seems obvious that the US and the EU countries are most responsible. This reflects in part the broader conflict patterns in the Middle East, which focus on Iran. It is generally believed in the West that Iran seeks the destruction of the Jewish state, and this partly accounts for the strong backing of Israel as the last European colonial venture. It is my understanding that Iran opposes the Zionist Project so far as it seeks to extend Jewish supremacy over the non-Jewish residents of Israel and the Occupied Palestinian Territories. This supremacy has been recently determined to be an instance of the international crime of apartheid by the influential and politically independent human rights organization, Human Rights Watch, as well as by the leading human rights NGO in Israel, B’Tselem. 

4. What is the mission of world public opinion, especially Europe and the United States, in dealing with such inhuman behavior?

There is an encouraging increase is solidarity support in Europe and the US for the Palestinian struggle to achieve basic rights. The BDS campaign is exerting pressure from without and below upon Israel in a manner similar to anti-apartheid campaign waged successfully against South Africa more than 25 years ago. Israel is losing the Legitimacy War to the Palestinian movement, and the history of anti-colonial movements has demonstrated that what happens with respect to the control of the legitimacy discourse is generally more important over time than what happens on the battlefield in terms of the ultimate political outcome of political struggles in the period since World War II.

5. How do you assess the internal situation in Israel, given the growing economic pressures and identity challenges in this society?

I think the electoral impasse in Israel is a clear indication that all is not well. Israel has drifted politically steadily to the right as to the pursuit of a diplomatic solution of the conflict with Palestine, and feels no current security pressure to scale back the ambitions of the Zionist movement. At the same time there are internal identity challenges evident in the tensions between the secular character of the Israeli state and the increasing leverage of extreme Orthodox Judaism. Whether the economic effects of the boycott and divestment efforts supporting Palestinian goals is being offset by the normalization agreements concluded with Arab governments at the end of 2020 remains to be seen. 

6. Why have peace projects in the region, which are more in the interests of Israel, failed to move forward?

Israel relies on alleged security threats from Iran to keep its citizens mobilized and unified around this central challenge, although it is Israel that commits aggression against Iran and tries its best to prevent the revitalization of the JCPOA Nuclear Agreement, which will have the effect of eliminating US sanctions on Iran. There has been a shift in Israeli foreign policy priorities from the Palestinian/Arab threat, which has been neutralized at present, to the primacy of the Iranian threat. Iran is seen as threatening Israel’s nuclear weapons regional monopoly and as supporting groups throughout the region that are perceived as hostile to Israel’s interests, including Hamas, Hezbollah, and the Houthis. Israel is aware that the regional balance could shift quickly against it by future political developments, as well as by the deployment and development of weaponry that could challenge its security at home and throughout the region. So long as the Islamic Republic Tehran exists, Israel will base its foreign policy on aggressive military actions toward Iran. Israel has always felt that its regional security depends on opposing the consolidation of any strong regional actor that is sympathetic with the Palestinian struggle, such as Iran, Turkey, and Syria.

Palestinian Recourse to the International Criminal Court: The Time has Come

21 Jul

[Prefatory Note: “Palestine’s Dilemma: To Go or Not to Go to the International Criminal Court” was published on July 13, 2014 on the website of Middle East Eye, a site I strong recommend to all those with an interest in Middle East issues; this post represents a somewhat revised text, but within the framework of the original; the political plausibility of invoking the Inteernational Criminal Court to investigate allegations of criminality directed at Israel increases with each passing day.)

 

 

 

Ever since this latest Israeli major military operation against Gaza started on July 8, there have been frequent suggestions that Israel is guilty of war crimes, and that Palestine should do its best to activate the International Criminal Court (ICC) on its behalf. The evidence overwhelmingly supports basic Palestinian allegations—Israel is guilty either of aggression in violation of the UN Charter or is in flagrant violation of its obligations as the Occupying Power under the Geneva Convention to protect the civilian population of an Occupied People; Israel seems guilty of using excessive and disproportionate force against a defenseless society in the Gaza Strip; and Israel, among an array of other offenses, seems guilty of committing Crimes Against Humanity in the form of imposing an apartheid regime in the West Bank and through the transfer of population to an occupied territory as it has proceeded with its massive settlement project.

 

Considering this background of apparent Israeli criminality it would seem a no brainer for the Palestinian Authority to seek the help of the ICC in waging its struggle to win over world public opinion to their side. After all, the Palestinians are without military or diplomatic capabilities to oppose Israel, and it is on law, global solidarity, and their own creative and brave resistance that the Palestinian people must rest their hopes for eventually realizing their rights, particularly the right of self-determination and the right of return. Palestinian demonstrators in the West Bank are demanding that their leaders in the Palestinian Authority adhere to the Rome Statute, and become members of the ICC without further delay. It has become part of the message of Palestinian street politics that the Palestinians are being criminally victimized, and that the Palestinian Authority if it wants to retain the slightest shred of respect as representatives of the Palestinian people must join in this understanding of the Palestinian plight and stop ‘playing nice’ with Israeli authorities.

 

Such reasoning from a Palestinian perspective is reinforced by the May 8th letter sent by 17 respected human rights NGOs to President Mahmoud Abbas urging Palestine to become a member of the ICC, and act to end Israel’s impunity. This was not a grandstanding gesture dreamed up on the irresponsible political margins of liberal Western society. Among the signatories were such human rights stalwarts as Human Rights Watch, Amnesty International, Al Haq, and the International Commission of Jurists, entities known for their temporizing prudence in relation to the powers that be.

 

Adding further credence to the idea that the ICC option should be explored was the intense opposition by Israel and United States, ominously threatening the PA with dire consequences if it tried to join the ICC, much less to seek justice through its activating its investigative procedures. The American ambassador to the UN, Samantha Power, herself long ago prominent as a human rights advocate, revealed Washington’s nervous hand when she confessed that the ICC “is something that really poses a profound threat to Israel.” I am not sure that Power would like to live with the idea that because Israel is so vulnerable to mounting a legal challenge that its impunity must be upheld whatever the embarrassment to Washington of doing so. France and Germany have been more circumspect, saying absurdly that recourse to the ICC by Palestine should be avoided because it would disrupt ‘the final status negotiations,’ as if this pseudo-diplomacy was ever of any of value, a chimera if there ever was one, in the elusive quest for a just peace.

 

In a better world, the PA would not hesitate to invoke the authority of the ICC, but in the world as it is, the decision is not so simple. To begin with, is the question of access, which is limited to states. Back in 2009, the PA tried to adhere to the Rome Statute, which is the treaty governing the ICC, and was rebuffed by the prosecutor who turned the issue over to the Security Council, claiming a lack of authority to determine whether the PA represented a ‘state.’ Subsequently, on November 29, 2012 the UN General Assembly overwhelmingly recognized Palestine as ‘a nonmember observer state.’ Luis Moreno–Ocampo who had acted in 2009 for the ICC, and now speaking as the former prosecutor, asserted that in his opinion Palestine would now in view of the General Assembly action qualify as a state enjoying the option of becoming an ICC member. Normally, ICC jurisdiction is limited to crimes committed after the state becomes a member, but there is a provision that enables a declaration to be made accepting jurisdiction for crimes committed at any date in its territory so long as it is after the ICC itself was established in 2002.

 

Is this enough? Israel has never become a party to the Rome Statute setting up the ICC, and would certainly refuse to cooperate with a prosecutor who sought to investigate war crimes charges with the possible intention of prosecution. In this regard, recourse to ICC might appear to be futile as even if arrest warrants were to be issued by the court, as was done in relation to Qaddafi and his son in 2011, there would be no prospect that the accused Israeli political and military figures would be handed over, and without the presence of such defendants in the court at The Hague, a criminal trial cannot go forward. This illustrates a basic problem with the enforcement of international criminal law. It has been effective only against the losers in wars fought against the interests of the West and, to some extent, against those whose crimes are in countries located in sub-Saharan Africa. This biased form of international criminal law implementation has been the pattern since the first major effort was made after World War II at Nuremberg and Tokyo. Surviving German and Japanese leaders were prosecuted for their crimes while exempting the winners, despite Allied responsibility for the systematic bombing of civilian populations by way of strategic bombing and the American responsibility for dropping atomic bombs on the heavily populated cities of Hiroshima and Nagasaki.

 

Unfortunately, up to this time the ICC has not been able to get rid of this legacy of ‘victors’ justice,’ which has harmed its credibility and reputation. All ICC cases so far have involved accused from sub-Saharan African countries. The refusal of the ICC to investigate allegations of war crimes of the aggressors in relation the Iraq War of 2003 is a dramatic confirmation that leading states, especially the United States, possess a geopolitical veto over what the ICC can do. The ICC failure to investigate the crimes of Bush and Blair, as well as their entourage of complicit top officials, vividly shows the operations of double standards. Perhaps, the climate of opinion has evolved to the point where there would be an impulse to investigate the charges against Israel even if procedural obstacles preventing the case from being carried to completion. Any serious attempt to investigate the criminal accountability of Israeli political and military leaders would add legitimacy to the Palestinian struggle, and might have a positive spillover effect on the global solidarity movement and the intensifying BDS campaign.

 

Yet there are other roadblocks. First of all, the PA would definitely have to be prepared to deal with the wrath of Israel, undoubtedly supported by the United States and more blandly by several European countries. The push back could go in either of two directions: Israel formally annexing most or all of the West Bank, which it seems determined to do in any event, or more likely in the short run, withholding the transfer of funds needed by the PA to support its governmental operations. The U.S. Congress would be certain to follow the lead of Tel Aviv even if the Obama presidency might be more inclined to limit its opposition to a diplomatic slap on the PA wrist as it did recently in reacting to the June formation of the interim unity government, an important step toward reconciling Fatah and Hamas, and overcoming the fragmentation that has hampered Palestinian representation in international venues in recent years.

 

A second potential obstacle concerns the jurisdictional authority of the ICC, which extends to all war crimes committed on the territory of a treaty member, which means that leaders of Hamas would also likely be investigated and indicted for their reliance on indiscriminate rockets aimed in the direction of Israeli civilian targets.There is even speculation that given the politics of the ICC such that crimes alleged against Hamas might be exclusively pursued.

 

If we assume that these obstacles have been considered, and Palestine still wants to go ahead with efforts to activate the investigation of war crimes in Gaza, but also in the rest of occupied Palestine, what then? And assume further, that the ICC reacts responsibly, and gives the bulk of its attention to the allegations directed against Israel, the political actor that controls most aspects of the relationship. There are several major crimes against humanity enumerated in Articles 5-9 of the Rome Statute for which there exists abundant evidence as to make indictment and conviction of Israeli leaders all but inevitable if Palestine uses its privilege to activate an investigation and somehow is able to produce the defendants to face trial: reliance on excessive force, imposing an apartheid regime, collective punishment, population transfers in relations to settlements, maintenance of the separation wall in Palestine.

 

The underlying criminality of the recent aggression associated with Protective Edge (Israel’s name for its 2014 attack on Gaza) cannot be investigated at this point by the ICC, and this seriously limits its authority. It was only in 2010 that an amendment was adopted by the required 2/3 majority of the 122 treaty members on an agreed definition of aggression, but it will not become operative until 2017. In this respect, there is a big hole in the coverage of war crimes currently under the authority of the ICC.

 

Despite all these problems, recourse to the ICC remains a valuable trump card in the thin PA deck, and playing it might begin to change the balance of forces bearing on the conflict that has for decades now denied the Palestinian people their basic rights under international law. If this should happen, it would also be a great challenge to and opportunity for the ICC finally to override the geopolitical veto that has so far kept criminal accountability within the tight circle of ‘victors’ justice’ and hence only accorded the peoples of the world a very power-laden and biased experience of justice.