Implementation of General Assembly Resolution 60/251 of 15 March, 2006 Entitled, “Human Rights Council”
Special Rapporteur, John Dugard
Discrimination against Palestinians occurs in many fields. Moreover, the 1973 International Convention on the Suppression and Punishment of the Crime of Apartheid appears to be violated by many practices, particularly those denying freedom of movement to Palestinians.
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.
VII. RACIAL DISCRIMINATION AND APARTHEID
49. Article 1 of the International Convention on the Elimination of All Forms of Racial Discrimination of 1966 defines “racial discrimination” as meaning “any distinction, exclusion, restriction 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”. This convention only requires States to prohibit and eliminate racial discrimination. Another convention, the International Convention on the Suppression and Punishment of the Crime of Apartheid of 1973, goes further and criminalizes practices of racial segregation and discrimination that, inter alia, involve the infliction on members of a racial group of serious bodily or mental harm, inhuman or degrading treatment, arbitrary arrest or the deliberate creation of conditions preventing the full development of a racial group by denying to such a group basic human rights and freedoms, including the right to freedom of movement, when such acts are 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”.
50. Israel vehemently denies the application of these Conventions to its laws and practices in the Occupied Palestinian Territory. Despite this denial, it is difficult to resist the conclusion that many of Israel’s laws and practices violate the 1966 Convention on the Elimination of All Forms of Racial Discrimination. Israelis are entitled to enter the closed zone between the Wall and the Green Line without permits while Palestinians require permits to enter the closed zone; house demolitions in the West Bank and East Jerusalem are carried out in a manner that discriminates against Palestinians; throughout the West Bank, and particularly in Hebron, settlers are given preferential treatment over Palestinians in respect of movement (major roads are reserved exclusively for settlers), building rights and army protection; and the laws governing family reunification (para. 48 above) unashamedly discriminate against Palestinians. It is less certain that the International Convention on the Suppression and Punishment of the Crime of Apartheid is violated. The IDF inflicts serious bodily and mental harm on Palestinians, both in Gaza (paras. 8-13 above) and the West Bank (para. 42 above); over 700 Palestinians are held without trial (para. 43 above); prisoners are subjected to inhuman and degrading treatment (para. 44 above); and Palestinians throughout the OPT are denied freedom of movement (paras. 38-41 above). Can it seriously be denied that the purpose of such action is to establish and maintain domination by one racial group (Jews) over another racial group (Palestinians) and systematically oppressing them? Israel denies that this is its intention or purpose. But such an intention or purpose may be inferred from the actions described in this report.
X. INTERNATIONAL ACCOUNTABILITY AND RESPONSIBILITY
57. Individual criminal accountability is no substitute for State responsibility. A State that violates international law by destroying the property of another State used for humanitarian purposes in an occupied territory may be held responsible by the injured State in accordance with the traditional principles of State responsibility. Moreover a State that systematically violates a peremptory norm of general international law may incur responsibility to the international community as a whole for such conduct; and be subject to an international claim for reparation at the instance of any State prepared to make such a claim.12 Many States, particularly European States, have suffered damages as a result of Israeli attacks on their humanitarian assistance projects in the OPT. Moreover Israel has systematically violated peremptory norms of international law in the OPT, ranging from the denial of self-determination to serious crimes against humanity. States may well consider bringing claims against Israel under the rules governing State responsibility in order to induce it to comply with its obligations in the fields of human rights and humanitarian law.
XI. OCCUPATION, COLONIZATION AND APARTHEID: IS THERE A NEED FOR A FURTHER ADVISORY OPINION?
58. The international community, speaking through the United Nations, has identified three regimes as inimical to human rights – colonialism, apartheid and foreign occupation. Numerous resolutions of the General Assembly of the United Nations testify to this. Israel’s occupation of the West Bank, Gaza and East Jerusalem contains elements of all three of these regimes, which is what makes the Occupied Palestinian Territory of special concern to the international community.
59. That the OPT is occupied by Israel and governed by the rules belonging to the special legal regime of occupation cannot be disputed. The International Court of Justice confirmed this in respect of the West Bank and East Jerusalem in its 2004 Advisory Opinion on the Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory (see, ICJ Reports, p. 136, paragraph 78), and held that the Fourth Geneva Convention relative to the Protection of Civilian Persons in Time of War, of 1949, was applicable to this Territory (ibid., para. 101). The Security Council, General Assembly and States Parties to the Fourth Geneva Convention have declared that this Convention is applicable to the entire OPT (ibid., paras. 96-99). Moreover, it is not possible to seriously argue, as Israel has attempted to do, that Israel has ceased to occupy Gaza since August 2005, when it withdrew its settlers and the Israel Defense Forces from Gaza. Even before the commencement of “Operation Summer Rains”, following the capture of Corporal Gilad Shalit on 25 June 2006, Israel was able to exercise effective control over the Territory by reason of its control of Gaza’s external borders, air space and sea space. Since that date it has exercised its military authority within Gaza by military incursions and shelling, in circumstances which clearly establish occupation (see paragraphs 8-13 above).
61. Israel’s practices and policies in the OPT are frequently likened to those of apartheid South Africa (see, for example, Jimmy Carter, Palestine: Peace, Not Apartheid (2006)). On the face of it, occupation and apartheid are two very different regimes. Occupation is not intended to be a long-term oppressive regime but an interim measure that maintains law and order in a territory following an armed conflict and pending a peace settlement. Apartheid is a system of institutionalized racial discrimination that the white minority in South Africa employed to maintain power over the black majority. It was characterized by the denial of political rights to blacks, the fragmentation of the country into white areas and black areas (called Bantustans) and by the imposition on blacks of restrictive measures designed to achieve white superiority, racial separation and white security. Freedom of movement was restricted by the “pass system” which sought to restrict the entry of blacks into the cities. Apartheid was enforced by a brutal security apparatus in which torture played a significant role. Although the two regimes are different, Israel’s laws and practices in the OPT certainly resemble aspects of apartheid, as shown in paragraphs 49-50 above, and probably fall within the scope of the 1973 International Convention on the Suppression and Punishment of the Crime of Apartheid.
62. Colonialism and apartheid are contrary to international law. Occupation is a lawful regime, tolerated by the international community but not approved. Indeed over the past three decades it has, in the words of the Israeli scholar Eyal Benvenisti, “acquired a pejorative connotation”.13 What are the legal consequences of a regime of occupation that has continued for nearly 40 years? Clearly none of the obligations imposed on the occupying Power are reduced as a result of such a prolonged occupation.14 But what are the legal consequences when such a regime has acquired some of the characteristics of colonialism and apartheid? Does it continue to be a lawful regime? Or does it cease to be a lawful regime, particularly in respect of “measures aimed at the occupants’ own interests”?15 And if this is the position, what are the legal consequences for the occupied people, the occupying Power and third States? Should questions of this kind not be addressed to the International Court of Justice for a further advisory opinion? It is true that the 2004 Advisory Opinion on the Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory has not had the desired effect of compelling the United Nations to take firmer action against the construction of the Wall. On the other hand, it must be remembered that the United Nations requested four advisory opinions from the International Court of Justice to guide it in its approach to South Africa’s occupation of South-West Africa/Namibia. In these circumstances a request for another advisory opinion warrants serious consideration.
Read the full report here