Israel/Palestine

Analysis by international legal team

In 2009, a comprehensive 18-month independent academic study was completed for the Human Sciences Research Council of South Africa for the South African Department of Foreign Affairs on the legal status of Israel's occupation of East Jerusalem, the West Bank and Gaza Strip. The specific questions examined in the study were whether Israeli policies are consistent with colonialism and apartheid, as these practices and regimes are spelled out in relevant international legal instruments. The second question, regarding apartheid, was the major focus of the study. Authors and analysts contributing to the study included jurists, academics and international lawyers from Israel, the occupied Palestinian territories, South Africa, England, Ireland and the United States. The team considered whether human rights law can be applied to cases of belligerent occupation, the legal context in Israel and the occupied Palestinian territories and related international law and comparative practices. The question of apartheid was examined through a dual approach: reference to international law and comparison to policies and practices by the apartheid regime in South Africa. Initially released as a report, the report was later edited and published in 2012 (by Pluto Press) as Beyond Occupation: Apartheid, Colonialism and International Law in the Occupied Palestinian Territories.

Regarding international law, the team reported that Israel's practices in the OPT correlate almost entirely with the definition of apartheid as established in Article 2 of the International Convention on the Suppression and Punishment of the Crime of Apartheid. (The exception was the Convention's reference to genocidal policies, which were not found to be part of Israeli practices, although the team noted that genocide was not the policy in apartheid South Africa either.) Comparison to South African laws and practices by the apartheid regime also found strong correlations with Israeli practices, including violations of international standards for due process (such as illegal detention); discriminatory privileges based on ascribed ethnicity (legally, as Jewish or non-Jewish); draconian enforced ethnic segregation in all parts of life, including by confining groups to ethnic "reserves and ghettoes"; comprehensive restrictions on individual freedoms, such as movement and expression; a dual legal system based on ethno-national identity (Jewish or Palestinian); denationalization (denial of citizenship); and a special system of laws designed selectively to punish any Palestinian resistance to the system.

Thematically, the team concluded that Israel's practices could be grouped into three "pillars" of apartheid comparable to practices in South Africa:

The first pillar "derives from Israeli laws and policies that establish Jewish identity for purposes of law and afford a preferential legal status and material benefits to Jews over non-Jews".

The second pillar is reflected in "Israel's 'grand' policy to fragment the OPT [and] ensure that Palestinians remain confined to the reserves designated for them while Israeli Jews are prohibited from entering those reserves but enjoy freedom of movement throughout the rest of the Palestinian territory. This policy is evidenced by Israel's extensive appropriation of Palestinian land, which continues to shrink the territorial space available to Palestinians; the hermetic closure and isolation of the Gaza Strip from the rest of the OPT; the deliberate severing of East Jerusalem from the rest of the West Bank; and the appropriation and construction policies serving to carve up the West Bank into an intricate and well-serviced network of connected settlements for Jewish-Israelis and an archipelago of besieged and non-contiguous enclaves for Palestinians".

The third pillar is "Israel's invocation of 'security' to validate sweeping restrictions on Palestinian freedom of opinion, expression, assembly, association and movement [to] mask a true underlying intent to suppress dissent to its system of domination and thereby maintain control over Palestinians as a group."