Beyond Occupation: Apartheid, Colonialism and International Law in the Occupied Palestinian Territories
352
Beyond Occupation: Apartheid, Colonialism and International Law in the Occupied Palestinian Territories
352Paperback
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Product Details
| ISBN-13: | 9780745332352 |
|---|---|
| Publisher: | Pluto Press |
| Publication date: | 09/13/2012 |
| Pages: | 352 |
| Product dimensions: | 6.00(w) x 8.90(h) x 0.90(d) |
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CHAPTER 1
Sources of Law and Key Concepts
EXPLORING COLONIALISM AND APARTHEID AS MATTERS OF INTERNATIONAL LAW
In January 2007, the United Nations (UN) General Assembly received an unprecedented report from the Special Rapporteur on the human rights situation in the Occupied Palestinian Territories (OPT). Drawing from his long experience with human rights law in apartheid South Africa, John Dugard had been struck by the similarities of practices he was witnessing in the OPT. Now he posed a question for international law:
The international community has identified three regimes as inimical to human rights – colonialism, apartheid and foreign occupation. Israel is clearly in military occupation of the OPT. At the same time, elements of the occupation constitute forms of colonialism and of apartheid, which are contrary to international law. What are the legal consequences of a regime of prolonged occupation with features of colonialism and apartheid for the occupied people, the occupying Power and third States? It is suggested that this question might appropriately be put to the International Court of Justice for a further advisory opinion.
Dugard's formal assertion that the conflict had 'elements' or 'features' of colonialism and apartheid, to the extent that serious consideration was warranted by the International Court of Justice (ICJ), was both startling and provocative. The terms 'colonial' and 'apartheid' are often used in polemics regarding the Israeli-Palestinian conflict, but he did not use them lightly or as a heuristic allusion. A sober, cautious and highly respected South African legal scholar, author of the magisterial Human Rights and the South African Legal Order and other classic tomes on South African apartheid policy, Dugard's observation that elements of Israel's policies constitute colonialism and apartheid carried the weight of an acknowledged world expert on both matters and elevated questions about whether they were operating in Israel-Palestine to a new and more serious level.
An advisory opinion by the ICJ on the legality of an occupation would not be unprecedented. The Court issued such an opinion in 1971, regarding South Africa's occupation of South West Africa (now Namibia). After the First World War, South Africa had assumed authority over the territory under a League of Nations mandate, after the defeat and withdrawal of Germany, its former coloniser. After the Second World War, when the people of South West Africa sought full independence, South Africa not only refused to withdraw but insisted on sustaining its own apartheid policies there, drawing increasing condemnation by the international community. In 1970, the UN Security Council declared South Africa's continuing presence in South West Africa illegal, partly on grounds of its violations of the civilian population's right to self-determination and human and civil rights (especially, through arbitrary detentions and arrests). In 1971, in the last of four advisory opinions on the question, the ICJ was asked to rule on the controversy and considered South Africa's defence of these policies – that 'separate development' (apartheid) actually reflected the true rights and needs of all peoples in the territory. Rejecting this argument, the Court held that a policy of 'complete physical separation of racial and ethnic groups' entailed a 'denial of human rights' that was in 'flagrant violation of the purposes and principles of the Charter'. The Court concluded that South Africa's argument for 'separate development' only reinforced the illegitimacy of its governance there, and held that
the continued presence of South Africa in Namibia being illegal, South Africa is under obligation to withdraw its administration from Namibia immediately and thus put an end to its occupation of the Territory.
The ICJ has never ruled on the legality of Israel's occupation of the OPT. It has dealt only with some aspects of Israel's practices as an Occupying Power, in its 2004 advisory opinion, Legal consequences of the construction of a wall in Occupied Palestinian Territory. In that case, the Court was asked to rule on a particular practice by the Occupying Power, not the nature or legality of the occupation itself. Should the General Assembly follow Dugard's recommendation and request the ICJ to consider whether Israel's policies in the OPT breach the international legal prohibitions on colonialism and apartheid, the Court would then be considering whether Israel's occupation is illegal on these grounds.
Such an opinion would be a historic step in the history of the Israeli-Palestinian conflict. Contrary to many assumptions, belligerent occupation is not, in itself, an unlawful situation: it is accepted as a possible consequence of armed conflict. International law regarding such situations presupposes, however, that occupation is a temporary state of affairs that will naturally draw to a close after the cessation of hostilities – or, at the latest, upon the conclusion of a peace agreement. Any other outcome is precluded by the norms of international law which prohibit the acquisition of territory through the use of force. A belligerent occupation that has lasted over four decades therefore suggests that the Occupying Power's intentions should come under review, to assess whether it reflects a policy of annexation (partial or total) that equates with colonialism. If the Occupying Power has also implanted its own population as settlers in the occupied territory, and ensured that the settler population has preferential rights in respect to the population under occupation on grounds of ethnic or racial identity – especially, rights of movement and residence – then this review must also consider whether the occupation regime equates with apartheid.
Such a review must move beyond what some Israeli legal scholars have already criticised as a 'habitual focus on specific actions ... as distinct from the nature of the occupation as a normative regime'. The latter approach entails a comprehensive review of the Occupying Power's doctrines, laws and practices. Such a study must obviously draw from law relevant to occupation: that is, international humanitarian law. But it must also turn to international human rights law – especially, prohibitions of colonialism and apartheid – and other relevant international law and theory to consider whether Israel's belligerent occupation of the OPT since June 1967 is violating those prohibitions and therefore is illegal on those grounds. This study undertakes that comprehensive project.
SCOPE OF THE STUDY
The scope of this book was intentionally limited in three ways. First, it does not address individual criminal responsibility for practices of apartheid (now considered a crime against humanity). Second, evidence is confined, with few exceptions, to Israeli practices within the OPT and to the period after the 1967 war during which those territories came under military occupation. Finally, the study is confined to whether the occupation is illegal on grounds of colonialism or apartheid; it does not consider whether Israel's occupation may be unlawful on other grounds. Since all three of these limitations might draw controversy, they are explained here with some care.
State versus individual responsibility
Establishing that an international law – such as the prohibition of apartheid or colonialism – has been breached is different from establishing that individuals have committed an international crime. The latter question requires demonstrating not only that a criminal offence has taken place (the actus reus ) but also, crucially, that the accused person acted with the requisite awareness, intention or mental state (the mens rea) which renders that conduct criminal. (For example, if forced population transfer results in mass deaths, it is not considered a crime of genocide if officials who organised the transfer are found not to have intended this outcome.) Moreover, mens rea must be proved in relation to every separate criminal act by each individual. Such an undertaking regarding criminality by individuals was well beyond the scope of this study.
This book focuses instead on State practices and policies that are identified by international law as constituting colonialism or apartheid. Such a finding would give rise to State responsibility. This responsibility would involve neither criminal nor civil law as these are conceived in domestic legal systems, but would signify that a State has breached a general international law that binds all States. If practices of the State of Israel are found to amount to apartheid, then questions of individual criminal responsibility would then arise. For example, the South African Truth and Reconciliation Commission adopted this approach when it convened in 1995 to assess criminal responsibility by individuals for acts of apartheid, based on the long-established premise that an apartheid regime was operating in the country between 1948 and 1993. Colonialism, on the other hand, is considered an internationally wrongful act but not a crime attracting individual criminal responsibility under international law.
State responsibility regarding practices of colonialism or apartheid is a grave matter in itself because prohibitions of both are seen to have peremptory status under international law. A peremptory norm (or jus cogens rule) is a rule 'accepted and recognised by the international community of States as a whole as a norm from which no derogation is permitted'. Peremptory norms include, for example, prohibitions on slavery and genocide, which are not accepted as legitimate under any circumstances and are seen to affect the vital interests of the international community as a whole. A serious breach of a peremptory norm therefore imposes on all States serious remedial duties that do not arise in relation to other internationally wrongful acts. The International Law Commission, which is responsible for codifying the rules of State responsibility, has clarified that 'racial discrimination and apartheid' are among those practices that are 'prohibited in widely ratified international treaties and conventions admitting of no exception'. At the 1993 World Conference on Human Rights (usually called the Vienna Conference), representatives of States who were attending generally agreed that prohibitions of racial discrimination and apartheid are peremptory norms.
This status makes colonial and apartheid regimes matters of grave concern for all States: all States are responsible for acting appropriately to help end them. A State that is found to be practising colonialism or apartheid carries the primary responsibility: it must terminate related laws and practices immediately, make assurances and guarantees not to return or repeat the policy, give satisfaction for any injuries; and provide full reparations for any material and moral damage its practices have caused. But third-party States also have special responsibilities, which are considered more fully in Chapter 5.
Scope of empirical evidence
Empirical evidence for this study was assembled from documents assembled by UN organs, human rights organisations and other reputable authorities that have tracked and analysed Israeli practices and policies in the OPT from the perspective of human rights law and international humanitarian law. Reflecting this study's central question – the legality of Israel's occupation – this evidence was confined in two significant (and, to some, controversial) ways.
First, evidence was limited geographically to Israeli law and practices in the Gaza Strip, East Jerusalem and the West Bank – that is, the territories in Mandate Palestine that Israel occupied in June 1967 and that lie beyond the ceasefire lines delineated in Israel's 1949 Armistice Agreements with Egypt and Jordan. (The Golan Heights, although also occupied by Israel in 1967, was excluded from this study only because it was not a part of Mandate Palestine and so fell outside the scope of the Special Rapporteur's 2007 report to which this study responds.) Israeli State law and practices inside the 1949 ceasefire lines were also excluded (with a few exceptions) because the concern here is with the legality of Israel's occupation and accordingly with Israel's practices in territories that are internationally recognised as being held under belligerent occupation.
This decision to confine the study's scope to the OPT was not uncontroversial among the study's contributors. One argument was that Israel's practices inside its 1949 borders are so interdependent with policies in the OPT that they cannot be separated sensibly. Another was that Israel cannot be considered an 'apartheid state' unless its policies throughout the territory under its control are consistent with apartheid as it was practised in South Africa, raising the objection that Palestinian citizens of Israel have the right to vote. These points were considered important by the contributors to larger questions of Israel's comprehensive regime in the entire territory under its control, but not directly relevant to the question of whether Israel's occupation of the West Bank, East Jerusalem and the Gaza Strip is illegal on grounds of colonialism or apartheid. Consensus was finally achieved to focus in this study on the legality of the occupation and hope that others will build on the study's findings by adopting a broader geographic ambit.
In practice, this attempt at geographic limitations did not operate neatly. For one thing, Israeli policy is to extend Israeli Basic Law and other domestic civil law to Jewish settlers in the OPT. This practice required considering how these domestic laws function to construct and privilege Jews relative to Palestinians in ways relevant to a finding of apartheid. For another, the Supreme Court of the State of Israel hears cases from Palestinians living in the OPT, blurring the separation of Israeli and occupied territory in ways especially significant to a finding of colonialism. Trade, tax and customs policies also bridge the boundary, fusing the two economies in ways consistent with colonialism. Therefore, Israeli domestic institutions, law and policy, as well as Supreme Court decisions, were necessarily considered in this book where they become relevant.
Finally, evidence is confined to the period after Israel's occupation began in June 1967, on grounds that matters pertaining to this period are sufficient to test for regimes of colonialism and apartheid. References to earlier history are introduced only where necessary to clarify certain legal questions. This approach (which also drew internal debate) is not meant to imply that events and policy statements prior to 1967 are not relevant to tests of colonialism and apartheid: particularly, to the 'purpose clause' in the definition of apartheid in the Apartheid Convention. Rather, this limitation reflected only the contributors' concern that historiographic controversies not distract from a legal review of Israeli contemporary practices under relevant international human rights law and humanitarian law. Again, it is hoped that subsequent studies will explore whether historical events before 1967 further illuminate the nature of Israel's regime in the OPT. Certainly the findings of this study support the relevance of such a study.
INTERNATIONAL LAW IN OCCUPIED TERRITORY
This study took as its basic framework, and point of departure, international law that applies to situations of belligerent occupation. In its broadest sense, this law includes laws on the use of force, international humanitarian law, international human rights law and international criminal law, as well as commentary and case law. International humanitarian law (known also as the laws of armed conflict or the laws of war) includes, especially, the 1907 Hague Convention IV Respecting the Laws and Customs of War on Land (henceforth, 'the Hague Regulations') and the Fourth Geneva Convention of 1949 relative to the Protection of Civilian Persons in Time of War (henceforth, 'Fourth Geneva Convention'). International human rights law concerns the prohibitions of colonialism and apartheid. The prohibition of colonialism is expressed most explicitly in the United Nations' Declaration on the Granting of Independence to Colonial Countries and Peoples of 1960 (hereafter, the 'Declaration on Colonialism'). The prohibition of apartheid was first introduced in the International Convention on the Elimination of All Forms of Racial Discrimination of 1963 (ICERD) and affirmed in 1973 by the Convention on the Suppression and Punishment of the Crime of Apartheid (hereafter, the 'Apartheid Convention').
While all these legal instruments are discussed in subsequent chapters, their general applicability to Israel's policies in the OPT is summarised here to clarify how they comprise the study's theoretical framework. Later sections consider the meaning of 'belligerent occupation' and the significance of an ICJ opinion regarding the prohibitions of colonialism or apartheid.
International humanitarian law
International humanitarian law is concerned with the relations between an Occupying Power and the civilian population under its authority. Especially important, for the purposes of this study, are those provisions regulating the powers and responsibilities of an Occupying Power (here, Israel) regarding 'protected persons' under its authority (here, Palestinians). The essential provisions of this law are contained in the 1907 Hague Regulations and the Fourth Geneva Convention of 1949.
(Continues…)
Excerpted from "Beyond Occupation"
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Copyright © 2012 Virginia Tilley.
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Table of Contents
Preface1. Sources Of Law And Key Concepts
2. The Legal Context In the Occupied Palestinian Territories
3. Review of Israeli Practices Relative to the Prohibition of Colonialism
4. Review of Israeli Practices Relative to the Prohibition of Apartheid
5. Conclusion — Legal Implications
Notes
Index