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Proof of Israel's violation of international law
AL-HAQ PRESS RELEASE
FOR IMMEDIATE RELEASE
REF.: 22.2009E
4 June 2009
For the past 15 months, Al-Haq has been involved in an extensive legal study that has culminated in the publication of a report entitled Occupation, Colonialism, Apartheid?: A re-assessment of Israel's practices in the occupied Palestinian territories under international law.
Funded by the South African Department of Foreign Affairs, the study was commissioned by the Human Sciences Research Council of South Africa (HSRC). In early 2008, the HSRC assembled a team of scholars and practitioners of public international law from South Africa, the United Kingdom, Ireland, the Occupied Palestinian Territory (OPT) and Israel to examine the suggestion made in the 2007 report of eminent South African jurist John Dugard, in his capacity as UN Special Rapporteur on the situation of human rights in the Palestinian territories occupied since 1967, that Israel’s practices in the OPT had assumed characteristics of colonialism and apartheid.
The resulting 300-page report—constituting an exhaustive review of Israel's practices in the OPT according to definitions of colonialism and apartheid provided by international law—has been posted for public debate on the HSRC website, to be finalised for full publication in book form later this year. It will form the basis for a discussion at an upcoming HSRC conference, Re-envisioning Israel/Palestine, from 12-14 June 2009 in Cape Town, in which Al-Haq will participate.
Findings of the study regarding colonialism
Examining Israel’s practices in the OPT in relation to the prohibition of colonialism in international law—as set down in the Declaration on the Granting of Independence to Colonial Countries and Peoples (1960) and other legal instruments—the study concludes that:
Five issues, which are unlawful in themselves, taken together make it evident that Israel’s rule in the OPT has assumed such a colonial character: namely, violations of the territorial integrity of occupied territory; depriving the population of occupied territory of the capacity for self-governance; integrating the economy of occupied territory into that of the occupant; breaching the principle of permanent sovereignty over natural resources in relation to the occupied territory; and denying the population of occupied territory the right freely to express, develop and practice its culture. […] Professor Dugard suggested that elements of the occupation resembled colonialism. This study demonstrates that the implementation of a colonial policy by Israel has not been piecemeal but is systematic and comprehensive, as the exercise of the Palestinian population’s right to self-determination has been frustrated in all of its principal modes of expression.
Findings of the study regarding apartheid
As the most egregious form of racial discrimination, the practice of apartheid is clearly proscribed by customary international law, and its prohibition is established as a norm of jus cogens. Article 3 of International Convention on the Elimination of All Forms of Racial Discrimination prohibits the practice of apartheid. Subsequent legal instruments, primarily in the forms of the International Convention on the Suppression and Punishment of the Crime of Apartheid, and the Rome Statute of the International Criminal Court, developed the norm against the practice of apartheid and provide further elaboration of its definition in international law. The core element of the definition of apartheid is the systematic, institutionalised, and oppressive character of the discrimination involved, and the purpose of domination that it entails. This is what distinguishes the practice of apartheid from other forms of prohibited discrimination. Apartheid also inherently amounts to a denial of the right to self-determination. The precedent of South African apartheid in Namibia demonstrates that apartheid may be practiced by a state beyond its own borders.
Israel has acted in violation of this prohibition in the OPT by establishing a system of racial domination over the Palestinians through its fragmentation of the OPT, and the creation of separate reserves for Jewish and Palestinian groups therein, which is buttressed by severe restrictions on the Palestinian rights to freedom of movement and residence. This system further encompasses institutionalised discrimination against Palestinians in favour of Jewish-Israeli settlers in the enjoyment of a panoply of civil, political, social, economic and cultural rights, as well as a matrix of draconian security laws and policies which subject opponents of Israel‘s regime of domination to, inter alia, extrajudicial executions, torture and arbitrary detention. Central to the conclusion is the finding that the ‘inhuman acts’ detailed are being committed by Israel in the OPT do not occur in random or isolated instances, but as 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.
The study thus establishes Israeli state responsibility for the practice of apartheid in the OPT. Its scope did not extend to addressing individual responsibility for the crime of apartheid, one of a number of topics recommended for further study.
Legal Consequences and Recommendations
On the basis of the above findings, the report states that:
The conclusion that Israel has breached the international legal prohibitions of apartheid and colonialism in the OPT suggests that the occupation itself is illegal on these grounds. The legal consequences of these findings are grave and entail obligations not merely for Israel but also for the international community as a whole.
Bearing the primary responsibility for the illegal situation it has created, Israel is bound to cease its unlawful activity and dismantle the structures and institutions of colonialism and apartheid that it has created. Israel is additionally required by international law to implement duties of reparation, compensation and satisfaction in order to eliminate the consequences of its unlawful acts.
Both Israel and the international community are bound to promote the Palestinian people’s exercise of its right of self-determination in order that it might freely determine its political status and freely pursue its own economic policy and social and cultural development. Third States are further bound under the principles of public international law to cooperate to bring to an end Israel’s practices of colonialism and apartheid, to abstain from recognising the illegal situations brought about by those practices, and not to aid or assist the maintenance of such illegal situations. States cannot evade these international legal obligations by hiding behind the independent personality of an international organisation of which they are members. Further, the responsibilities incumbent on Israel and third States are unconditional and unaltered by any political negotiations occurring at a given time.
Towards the goal of further clarifying the issues addressed, the study concludes by recommending that an advisory opinion be sought from the International Court of Justice on the following question:
Do the policies and practices of Israel within the Occupied Palestinian Territories violate the norms prohibiting apartheid and colonialism; and, if so, what are the legal consequences arising from Israel’s policies and practices, considering the rules and principles of international law, including the International Convention on the Elimination of all forms of Racial Discrimination, the International Convention on the Suppression and Punishment of the Crime of Apartheid, the Declaration on the Granting of Independence to Colonial Countries and Peoples, UN General Assembly Resolution 1514 (1960), the Fourth Geneva Convention of 1949, and other relevant Security Council and General Assembly resolutions?
International Law
There are a range of legal regimes that are applicable to the Occupied Palestinian Territory, including international humanitarian law, international human rights law, international criminal law, and bilateral agreements. Some of the key standards in each of these regimes are listed below:
- International Criminal Law
- International Humanitarian Law
- International Human Rights Law
- United Nations Bodies
Bi-lateral Agreements
- (1993) Declaration of Principles on Interim Self-Government Arrangements
- (1994) Agreement on the Gaza Strip and the Jericho Area
- (Annex I) Protocol Concerning Withdrawal of Israeli Military Forces and Security Arrangements
- (Annex II) Protocol Concerning Civil Affairs
- (Annex III) Protocol Concerning Legal Matters
- (1994) The Cairo Agreement
- (1995) Interim Agreement on the West Bank and the Gaza Strip
- (1997) Protocol Concerning the Redeployment in Hebron
- (1945) Charter of the Nüremberg International Military Tribunal
- (1945) Charter of the Nüremberg International Military Tribunal(1945) Charter of the Nüremberg International Military Tribunal
- (1946) Charter of the International Military Tribunal for the Far East
- (1948) Convention on the Prevention and Punishment of of the Crime of Genocide
- (1968) Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes Against Humanity
- (1993) Statute of the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia Since 1991
- (1994) Statute of the International Criminal Tribunal for the Prosecution of Person Responsible for Genocide and Other Serious Violations of International Humanitarian Law Committed in the Territory of Rwanda and Rwandan Citizens Responsible for Genocide and Other Such Violations Committed in the Territory of Neighbouring States, between 1 January 1994 and 31 December 1994
- (1998) Rome Statute of the International Criminal Court
- (2000) International Criminal Court, Elements of Crimes195KB
- (2000) Statute of the Special Court for Sierra Leone
International Humanitarian Law
- (1907) Hague Convention (IV) Respecting the Laws and Customs of War on Land
- (1949) Fourth Geneva Convention for the Protection of Civilians in Times of War 12 August 1949
- (1954) Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict
- (1977) Geneva Protocol I Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts
- (1977) Geneva Protocol II Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of Non- International Armed Conflicts
- (1977) United Nations Convention of the Prohibition of Military or Any Other Hostile Use of Environmental Modification Techniques
- (1978) Red Cross Fundamental Rules of International Humanitarian Law Applicable in Armed Conflicts
- (1981) United Nations Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons Which May be Deemed to be Excessively Injurious or to Have Indiscriminate Effects
International Human Rights Law
- (1948) Universal Declaration of Human Rights
- (1948) Universal Declaration of Human Rights(1948) Universal Declaration of Human Rights
- (1955) Standard Minimum Rules for the Treatment of Prisoners
- (1966) International Covenant on Economic, Social and Cultural Rights
- (1966) International Covenant on Civil and Political Rights
- (1966)Optional Protocol to the International Covenant on Civil and Political Rights
- (1966) International Convention on the Elimination of All Forms of Racial Discrimination
- (1979) Convention on the Elimination of All Forms of Discrimination Against Women
- (1981) Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief
- (1984) Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment
- (1988) Body of Principles for the Protection of All Persons Under Any Form of Detention or Imprisonment
- (1989) Convention on the Rights of the Child
- (1990) Basic Principles for the Treatment of Prisoners
- (1999) Declaration on the Right and Responsibility of Individuals, Groups and Organs of Society to Promote and Protect Universally Recognized Human Rights and Fundamental Freedoms
- (1999) Optional Protocol to the Convention on the Elimination of Discrimination Against Women
- (2000) Optional Protocol to the Convention on the Rights of the Child on the involvement of children in armed conflicts
- (2003) Optional Protocol to the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment
General Assembly Resolutions
- (29 November 1947) Resolution 181(II)
- (11 December 1948) Resolution 194(III)
- (18 December 1997) Resolution 207 - 52nd Session
(3 December 1998) Resolution 56 - 53rd Session - (9 February 1999) Resolution ES - 10/6
- (15 December 1988) Resolution 177 - 43rd Session
- (17 May 2004) Resolution 292 - 58th Session
- (12 December 2003) Resolution ES - 10/14
- (20 July 2004) Resolution ES - 10/L.18
Security Council Resolutions
- (22 November 1967) Resolution 242
- (22 October 1973) Resolution 338
- (19 March 1978) Resolution 425
- (22 March 1979) Resolution 446
- (1 March 1980) Resolution 465
- (17 December 1981) Resolution 497
- (12 October 1990) Resolution 672
- (18 December 1992) Resolution 799
- (18 March 1994) Resolution 904
- (28 September 1996) Resolution 1073
- (12 March 2002) Resolution 1397
- (19 November 2003) Resolution 1515
Special Procedures
- (2000) Special Rapporteur on the Situation of Human Rights in the Occupied Palestinian Territories, Report to the Commission on Human Rights
- (2001) Special Rapporteur on the Situation of Human Rights in the Occupied Palestinian Territories, Report to the Commission on Human Rights43.5KB
- (2001) Human Rights Inquiry Commission323KB
- (2001) Special Rapporteur on the Situation of Human Rights in the Occupied Palestinian Territories, Report to the General Assembly145 KB
- (2002) Special Rapporteur on the Situation of Human Rights in the Occupied Palestinian Territories, Mission Report 100KB
- (2002) Special Rapporteur on the Situation of Human Rights in the Occupied Palestinian Territories, Report to the General Assembly 81.8KB
- (2002) Special Rapporteur on the Right to Adequate Housing, Mission Report: Occupied Palestinian Territories 173KB
- (2002) Special Rapporteur on the Situation of Human Rights in the Occupied Palestinian Territories, Report to the Commission on Human Rights172 KB
- (2003) Special Rapporteur on the Situation of Human Rights in the Occupied Palestinian Territories, Report to the Commission on Human Rights 40KB
- (2004) Special Rapporteur on the Right to Food, Mission Report: Occupied Palestinian Territories to the Commission of Human Rights - Addendum 109KB
- (2004) Special Rapporteur on the Situation of Human Rights in the Occupied Palestinian Territories, Report to the Commission on Human Rights66KB
- (2004) Special Rapporteur on the Situation of Human Rights in the Occupied Palestinian Territories, Report to the Commission on Human Rights - Addendum166KB
- (2004) Special Rapporteur on the Violation of Human Rights in the Occupied Palestinian Territories, Report to the Commission on Human Rights
- (2005) Special Rapporteur on the Violation of Human Rights in the Occupied Palestinian Territories, Report to the Commission on Human Rights227 KB
- (2005) Special Rapporteur on the Situation on Human Rights in the Occupied Palestinian Territories, Report to the Commission on Human Rights - Addendum47.9 KB
- (2005) Special Rapporteur on Violence Against Women, Mission Report
International Court of Justice
- (9 July 2004) Advisory Opinion: Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory
Treaty Bodies
- (1994) Committee Against Torture, Concluding Observations
- (1994) Committee on the Elimination of Racial Discrimination, Concluding Observations
- (1997) Committee for the Elimination of Discrimination Against Women, Concluding Observations
- (1998) Committee Against Torture, Concluding Observations
- (1998) Committee on the Elimination of Racial Discrimination, Concluding Observations
- (1998) Human Rights Committee, Concluding Observations
- (2001) Committee Against Torture, Concluding Observations
- (2001) Committee on Economic Social and Cultural Rights, Concluding Observations
- (2002) Committee on the Rights of the Child, Concluding Observations
- (2003) Committee on Economic Social and Cultural Rights, Concluding Observations
- (2003) Human Rights Committee, Concluding Observations
- (2005) Committee for the Elimination of All Forms of Discrimination Against Women, Concluding Comments136 Kb