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- * INTRODUCTION - The term Apartheid has come to be accepted
officially in international law to refer to the systematic governing
structure and methods created and used by one government or group
of people for the purposes of oppressing and exploiting another
group of people who live in the same country or area and are differentiated
from the ruling group by some kind of racial criteria (race, color,
ethnicity, etc.), and to suppress their rebellion against this.
The legal definition of racism, or discrimination according to
a racial criteria that is the basis of apartheid can be found
in the International
Convention on the Elimination of All Forms of Racial Discrimination
(1965), which says:
Article 1
- 1. In this Convention, the term "racial discrimination"
shall mean any distinction, exclusion, restriction or
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.
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The official international law for identifying and guiding the
suppression and punishment of this apartheid is called the "International
Covenant on the Suppression and Punishment of the Crime of Apartheid"
of 1976. This law identifies apartheid as "a crime against
humanity":
- Article I.
- 1. The States Parties to the present Convention
declare that apartheid is a crime against humanity
and that inhuman acts resulting from the policies
and practices of apartheid and similar policies and
practices of racial segregation and discrimination,
as defined in article II of the Convention, are crimes
violating the principles of international law, in
particular the purposes and principles of the Charter
of the United Nations, and constituting a serious
threat to international peace and security.
- 2. The States Parties to the present Convention
declare criminal those organizations, institutions
and individuals committing the crime of apartheid.
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This law defines the crime of apartheid according to a criteria
of 6 types of crimes:
- a. Massive violation of human rights for the purpose of oppression;
- b. Subjection to inhumane living conditions;
- c. Legalized discrimination throughout society;
- d. Segregating and isolating the victim group in separate
areas (ghettoes or bhantulands);
- e. Labor exploitation such as forced labor or slavery;
- f. Persecution of rebellion against these measures of apartheid.
Thus this law of apartheid is very useful for delineating this
type of government sanctioned, law-based discrimination, but strictly
speaking, this law is used to prosecute discrimination according
to a criteria of race, and Israel's discriminatory practices clearly
discriminate according to a criteria of religion, and thus this
Convention would not apply when it comes down to actual prosecution
in international courts. Instead, Israel would have to be prosecuted
for the crime of persecution (which includes discrimination according
to religion), which is also defined as a Crime Against Humanity
according to the Rome Statute of the International Criminal Court,
which is the latest instrument of international law defining crimes
such as War Crimes, Crimes Against Humanity, etc. This Statute
actually lists the crime of apartheid and the crime of persecution
next to each other, and gives them equal status. Below I list
the entire list of crimes that qualify as Crimes Against Humanity
so that you can see the full range of crimes of which apartheid
and persecution are a part of:
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Article 7: Crimes Against Humanity
- 1. For the purpose of this Statute, "crime against humanity" means any of the following acts when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack:
- (a) Murder;
- (b) Extermination;
- (c) Enslavement;
- (d) Deportation or forcible transfer of population;
- (e) Imprisonment or other severe deprivation of physical liberty in violation of fundamental rules of international law;
- (f) Torture;
- (g) Rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or any other form of sexual violence of comparable gravity;
- (h) Persecution against any identifiable group or collectivity on political, racial, national, ethnic, cultural, religious, gender as defined in paragraph 3, or other grounds that are universally recognized as impermissible under international law, in connection with any act referred to in this paragraph or any crime within the jurisdiction of the Court;
- (i) Enforced disappearance of persons;
- (j) The crime of apartheid;
- (k) Other inhumane acts of a similar character intentionally causing great suffering, or serious injury to body or to mental or physical health.
- 2. For the purpose of paragraph 1:
- (g) "Persecution" means the intentional and severe deprivation of fundamental rights contrary to international law by reason of the identity of the group or collectivity;
- (h) "The crime of apartheid" means inhumane acts of a character similar to those referred to in paragraph 1, committed in the context of an institutionalized regime of systematic oppression and domination by one racial group over any other racial group or groups and committed with the intention of maintaining that regime;
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Thus, even though Israel could not be prosecuted for the crime of
apartheid, the definition of this crime is still useful for analyzing
and presenting the legalized discrimination that has developed in
the State of Israel because it is so far-ranging and diverse in
its manifestations.
Thus, with that purpose in mind, here is the definition of apartheid as given in the actual international convention:
- 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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The State of Israel has forms of discrimination which fit into
every single of the 6 criteria defining the crime of apartheid.
But, once again, actual prosecution would be for the crime of
persecution.
Below is the outline of Israeli legalized discrimination in use
in the State of Israel, and how it fits the official legal definition
of the crime of apartheid:
- I. LIMITING DEMOCRATIC RIGHTS & EQUALITY:
- 2. Giving influential positions in government only to Jewish
organizations giving Israeli Jews special advantages in
many industries and government functions over other groups (more
details about this).
This is a law-based bureaucratic structure actually set up
in laws that define a wide range of Israeli government agencies.
The end result was that Jewish organizations were given special
representation in those government agencies which gave them
unfair advantage in the decision-making of those agencies.
This is an excellent example of point #C -
- Article II.
- 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;
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- 3. Inhibiting freedom of speech and freedom of association
- Israel places some barriers to the full exercise of these
rights (more details about
this).
This is an example of civil rights being inhibited by certain
laws (Amutot
Law (1980) and 1985 9th
Amendment to the Basic Law: The Knesset) in order to limit
the participation of dissidents or minorities in the legislative
process. Thus this example also fits point #C in the legal
definition of apartheid:
- Article II.
- 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;
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- II. LEGALIZED DISCRIMINATION BASED ON RELIGION:
- 1. Discriminatory Land Laws (Discriminatory Policies
in Land Leasing, Development & Management, & Confiscating
Private Lands) (more details
about this).
These laws were used to take rural land from Palestinian
Arab land owners, and then the laws mostly prohibited anyone
but Jews from leasing those lands to live on them or cultivate
them.
The end result of the practice of these laws by 2002 was
that Palestinian Arabs owned less than 5% of the rural lands
of Israel, when previously they were a majority owner. For
example, as of 1948, the Zionists only possessed 6% of the
rural lands of Israel. And in fact, before 2002, Arabs could
not even dwell on those lands, and thus they were confined
to living in the cities or on the 5% that was still owned
by Arabs.
Finally, in 2002, the Israeli Supreme Court made discriminatory
leasing by government agencies illegal.
This was an example of point #d in the legal definition of
apartheid where the victim population ended up being confined
to small areas outside the cities. Even though the 2002 ruling
has made illegal the discriminatory leasing, the Arab landowners
will not be given their lands back, they are now theoretically
simply able to possibly lease them.
But this also might be an example of point #B because these
Arab rural communities are then also deprived of a wide range
of government services thus making them the most impoverished
areas in the State of Israel. For example they receive very
few community development programs and special educational
programs. One group of Arab villages have been actually zoned
out of existence, and are thus referred to as "unrecognized
villages", and thus have lost basic services such as
electricity and sewer maintenance and upgrading. In addition,
Arab neighborhoods in the cities and towns are also amongst
the most impoverished in the nation.
- Article II.
- 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;
- 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;
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- 2. Discrimination in Immigration & Citizenship - citizenship
is automatic for Jews, more difficult for Arabs, and Arabs who
left the area during the 1948 fighting are not allowed back
in the country, and their property is confiscated and redistributed.
ID papers are required of all citizens, and they identify the
carrier's religion and ethnicity, which leads to discrimination.
Then as per 2003
law, Arab spouses who were residing in the occupied territories
are not allowed to join their families in Israel, to help Jews
maintain demographic majority in the country (more
details about this).
The International
Covenant on the Suppression and Punishment of the Crime of
Apartheid (1976) says on this matter:
- 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:
- 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;
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- 3. Veteran's Benefits - Military Service (or a non-military
substitute) are not equally available to most Arabs, and thus
service benefits are awarded in a discriminatory manner as a
result (more details about
this).
This is another example point #C in the legal definition
of apartheid, because it is a law-based pattern whereby most
Arabs are not allowed to serve in the Israeli military, and
thus are automatically deprived of the wide range of military
veteran benefits that are awarded to veterans and their families.
In addition, no other alternative community service program
is available to the Palestinian Arab population so that they
may have an alternative way to earn those benefits.
- Article II.
- 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;
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- 4. Jewish Religious and Cultural Organizations & Events
- Receive Preferential Treatment in Gov't Decision-Making and
Budgetting vs. other groups (more
details about this).
This is another example of point #C in the legal definition
of apartheid, because in all sorts of laws passed by the Israeli
legislature (the Knesset), Jewish cultural, religious and
educational institutions and events and symbols are given
special funding and special recognition and special advantage
over all others. This reflects the Zionist goal of making
Israel a Jewish State, but it is also a clear form of discrimination.
- Article II.
- 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;
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- 5. Racist Harrassment in Daily Life Without Adequate
Police Response and Protection (more
details about this).
Palestinian Arabs report that they recieve much racist abuse
while walking the streets of Israel, visiting stores and restaurants
or conducting business outside the Arab areas, and the Israeli
police do little or nothing to protect them or put a stop
to it.
This refers to spontaneous behavior of Israeli citizens which
goes unpunished or unencumbered, rather than racist policies
that are anchored in Israeli law. Thus it is probably an example
of point #A in the legal definition of apartheid, because
it definitely results in mental harm and sometimes physical
harm, which is the intention of the aggressors, and then by
extension, the police officers who refuse to stop it.
Arab workers also regularly recieve lower wages than their
Jewish counterparts. This also is not based in the laws of
Israel, but is the general practice of Israeli society. Thus
it also might be an example of point #E referring to discriminatory
exploitation of labor.
- Article II.
- 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;
- e. Exploitation of the labour of the members
of a racial group or groups, in particular by
submitting them to forced labour;
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- III. INHUMANE SUPPRESSION OF REBELLION:
- 2. Limited Judicial Protection from inhumane judgments
or actions of the Israeli military or government. (more
details about this).
I am not sure if this fits in a particular criteria listed
under in the legal definition of apartheid. It simply refers
to how the Israeli Supreme Court normally supports the practice
of discrimination throughout Israeli society, by the government,
military, city police, businesses, civilians, etc.
There are a few exceptions to this (for example the 2002
ruling outlawing government discriminatory land leasing practices),
but the overall pattern of the Supreme Court is to support
these practices as part of the national goals of making Israel
a Jewish State, and a democratic state that is still controlled
by the Jewish parties and organizations.
- 3. Legalizing Human Rights Violations as per for example
the Defense
(Emergency) Regulations (1945) borrowed from the British
Mandate Government, used in Israel upto 1966, and but in use
in the Occupied Territories upto the present. These regulations
empower the area commander to arbitrarily, and often without
trial or charges (more
details about this).
Overtly, these Emergency Regulations are used to suppress
rebellion, which refers to point #F in the legal definition
of apartheid. But there is a lot of evidence that they were
also used to provoke and harass the native Palestinian Arab
population (which would be point #A). This is especially true
in the occupied territories where the Israeli military illegally
practices collective
punishment in response to Palestinian acts of rebellion,
taking increasing amounts of Palestinian-owned lands, in order
to surround and strangle Palestinian communities, and then
they build Israeli
settlements on them, which they claim are for defensive
purposes, but which actually results in a form of de
facto annexation, as they hook up those communities economically,
legally and with infrastructure to Israel itself (which is
also illegal as per international law).
The use of these regulations was discontinued within Israel
in 1966, but they continue to be used in the occupied territories
to this day.
Defence
(Emergency) Regulations (1945)
(summaries of selected regulations)
- Declare An Organization Unlawful, and thus
cancel its activities, and criminalize its membership
(more details
about this).
- Censure Media, such as Newspaper, TV, etc.
(more details
about this).
- Confine People To Their Homes or Area (more
details about this).
- Imprisonment Without Trial or Charges (more
details about this).
- Deportation Without Trial or Charges (more
details about this).
- Home Or Property Demolition (more
details about this).
- Area Closure - not allowing residents and
visitors in or out (more
details about this).
- Article II.
- 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;
- f. Persecution of organizations and
persons, by depriving them of fundamental
rights and freedoms, because they oppose
apartheid.
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