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?