With or without new ‘nation-state’ law, Israel is a settler-colonial apartheid state
A Palestinian BDS National Committee statement on the occasion of the UN Human Rights Day
Occupied Palestine, 10 December 2014 — Since the adoption of the Universal Declaration of Human Rights and United Nations Resolution 194 on December 10 and 11 of 1948, the UN has affirmed the human rights of the Palestinian people, including the right of the refugees to return to their homes and properties and the right to self-determination of the Palestinian people, on numerous occasions. Yet the UN has failed to address the serious and persistent Israeli violations of international law that prevent the exercise of these rights by Palestinians or to hold Israel to account for these infringements.
Sixty six years on, and on the occasion of the 2014 UN Human Rights Day, the Palestinian Boycott, Divestment and Sanctions (BDS) National Committee (BNC), representing all sectors of Palestinian civil society, reiterates its call on the United Nations and member states to acknowledge finally what is plain for everyone to see: Israel is neither a democratic state based on the rule of law, nor a temporary occupying power as defined in international humanitarian law. Israel is a criminal regime of settler colonialism and apartheid that systematically oppresses and displaces Palestinians with the aim of achieving permanent control of an exclusive “Jewish state” in most of the country, including most of the 1967 Occupied Palestinian Territory (OPT).
The elements of Israeli apartheid
The Rome Statute of the International Criminal Court defines apartheid as inhumane acts “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.”
Article 1 of the International Convention for the Elimination of all Forms of Racial Discrimination defines “racial discrimination” as “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.”
Institutionalized racial discrimination
Israel’s racial oppression of and domination over Palestinians is institutionalized in its domestic law, even without the new racist “Jewish nation-state” bill which was approved by the Israeli cabinet in November 2014. Irrespective of whether this bill will eventually be adopted by parliament, existing Israeli law already:
· Defines Israel as the “state of the Jewish people” and prevents candidacy for parliamentary elections of political parties that challenge this principle (Basic Law: the Knesset (1985), Amendment 9 of 1985).
· Claims sovereignty of the “state of the Jewish people” in the entire country, including the OPT (Area of Jurisdiction and Powers Ordinance, No. 29 of 5708-1948). Another law authorizes the government to incorporate newly seized areas into the state (Law and Administration Ordinance of 27June 1967, Section 11 B). On this basis, Israel treats the OPT as its own territory, exploiting its natural resources, expanding illegal Jewish colonial settlements and annexing East Jerusalem. Official Israeli maps show the entire area of British Mandate Palestine as Israel, with no reference to the occupied Palestinian territory. Israel’s domestic law, thus, contradicts the concept and rules of occupation under international humanitarian law.
· Reserves “national rights” and democracy only for Jews. Under Israeli law, there is no Israeli nationality, only “Jewish nationality” that is distinguished from citizenship. The superior status and rights of nationals are reserved for persons classified as “Jewish” in Israel’s Law of Return (1950), including new immigrants and settlers in the OPT. The Israeli Supreme Court has rejected attempts by citizens to be classified as “Israeli” in the national population registry, arguing that doing so would pose a threat to Israel’s founding identity as a Jewish state for the Jewish people.
· The right to equality is omitted in Israel’s Basic Laws, which have constitutional power. Israel’s so-called bill of human rights (Basic Law: Human Dignity and Liberty of 1992) requires conformity with Israel’s values as a “Jewish and democratic state” and permits racial discrimination on this basis. UN human rights bodies have repeatedly called on Israel to repeal or reform this law in accordance with international standards, and even the U.S. Department of State has regularly criticized Israel for its system of “institutional, legal and societal discrimination.”
Absent a firmly established right to equality that could trump the above in court, Israel’s legal system contains a myriad of additional discriminatory laws that undermine fundamental human rights of Palestinians, including Palestinian citizens of Israel. Most importantly, Israeli domestic law, as well as military orders modelled on Israeli domestic law, do not recognize the existence of the Palestinian people, their indigenous status and land rights, or their status as citizens under the law of the British Mandate.
· Israel’s Citizenship Law (1952) excludes the (descendants of) Palestinian refugees from all entitlement to civil status, making them stateless and permanently preventing their return. The same law makes Palestinians who came under Israeli rule after the 1948 Nakba and their descendants into “Israeli citizens”, i.e., a status of individuals without a national identity, indigenous or collective rights.
· The Entry into Israel Law (1952) and the Entry into Israel Regulations (1974), which are applied in occupied East Jerusalem in the context of the illegal annexation, transform Palestinians there into “permanent residents”, i.e., a status of quasi-foreigners that does not even protect the right to stay, leave and return to their country and constitutes the main legal basis of the on-going revocation of residency and deportation of Palestinians from East Jerusalem.
· Based on Israeli military orders that assigned a similarly precarious “resident” status to Palestinians elsewhere in the OPT, Israel had revoked the civil status and deported 140,000 Palestinians from the West Bank and 108,878 from the Gaza Strip by 1994. Since then Israel’s military regime treats West Bank Palestinians as quasi-citizens of the Palestinian Authority. Although retaining overall control over the PA, including the population register, Israel claims no responsibility for the human rights of the Palestinian population. Israel also includes the West Bank (the so-called “district of Judea and Samaria”) in its official demographic statistics, but omits mention of the Palestinian population there.
· A series of Israeli laws regulate the systematic and irreversible confiscation of Palestinian land and property, and their transfer into the permanent ownership of the state and the Jewish National Fund (JNF)Among them are the Absentees’ Property Law (1950), the Development Authority (Transfer of Property) Law (1950), the Land Acquisition for Public Purposes Ordinance (1943), and the Basic Law: Israel Lands (1960). Israeli law regulating the annexation of occupied East Jerusalem, moreover, contains a provision permitting claims for pre-1948 Jewish property in East Jerusalem, but not claims for pre-1948 Palestinian property in West Jerusalem (Legal and Administrative Matters (Regulation) Law (Consolidated Version), 1970).
· Finally, another set of Israel laws conveys public status and functions in Israel and the OPT – mainly in the administration and development of (appropriated Palestinian) land, communities and public services – to private Zionist organizations which are mandated to cater exclusively to the “Jewish people” (World Zionist Organization-Jewish Agency “Status” Law of 1952; Keren Kayemet Le-Israel Law of 1953; Covenant with Zionist Executive of 1954). As a result of these laws, in combination with the above system of land and property laws, 93% of the land in Israel came under the state’s control and is administered by the Israel Land Authority (ILA; formerly Israel Land Administration), where the JNF commands “decisive influence,” by law, ensuring that the land is exclusively used for the benefit Jews.
This discriminatory legal framework is completed by a state of emergency that has remained in force since 1948, and a set of emergency regulations. These are the basis for confiscation of Palestinian property under the Absentees’ Property Law, and inhuman acts such as torture, administrative detention and punitive home demolitions, committed in the name of “security”, all in violation of international law and standards.
Racial segregation, i.e., forced separation and unequal treatment of Jewish and Palestinian populations living in the same territory, is an additional element of Israel’s system of institutionalized racial oppression and domination. Racial segregation (in Hebrew: hafrada) is an official Israeli policy that has been strongly condemned by the UN Committee on the Elimination of Racial Discrimination. Examples are the maintenance of “Arab departments” and separate “Arab” and “Jewish sectors” in Israeli public administration, as well as the consecutive oppressive military regimes over Palestinians but not the Jewish population, first over Palestinian citizens (1948 – 1966), and then in the OPT since 1967.
Inhumane acts of apartheid
In the context of this institutionalized system of racial discrimination and segregation, and based on the massive ethnic cleansing of Palestinians in 1948, Israel, as “state of the Jewish people”, has reversed ownership and control of the land, changed the demographic composition of the country, and obtained effective control of the entire territory of pre-1948 Palestine. Whereas most Palestinians lived in Palestine as citizens until 1948, approximately one half of 11.8 million Palestinians today live abroad, and close to 70% are refugees and internally displaced persons. Whereas at least 90% of the land of historic Palestine was owned by Palestinians before the 1948 Nakba, Palestinians have effective control of only some 10% of the land today (3% in Israel, 40% in the OPT).
Israel keeps millions of Palestinians in protracted refugee-hood and forced exile. Since its “unilateral disengagement” (2005) from Gaza and the declaration of the Hamas-led PA as “hostile entity” (2007), Israel has pursued a policy of permanent separation of the occupied Gaza Strip from the country, aiming to get rid of the tiny strip of land with its large Palestinian population (1.7 million), most of them refugees (75%) with outstanding claims to their Israeli-confiscated land and (destroyed) homes located only a few kilometres away.
Elsewhere, Israel continues to dispossess and forcibly displace Palestinians who have remained in the country, as citizens of Israel, residents of occupied East Jerusalem, or under Israeli military rule in the occupied West Bank. Israel destroys or appropriates Palestinian heritage, communities and homes, confiscates Palestinian property and natural resources, and denies adequate services to populations it has deprived of their own means of livelihood and development.
Whereas all of the above is carried out gradually as a matter of routine administration, Israel also regularly seeks and exploits situations of acute armed conflict and crisis, such as recently in the occupied Gaza Strip and East Jerusalem, which provide a veil of “security” and “counter-terrorism” for aggressive implementation of these policies, and oppression of Palestinian resistance, by means of punitive campaigns and collective punishment.
The violations of international humanitarian and human rights law committed by Israel are not the occasional violations of a state based on the rule of law, or accidental war crimes of an otherwise lawful occupying power. Based on a legal system that defines Israel as the state of a “Jewish nation”, claims sovereignty in the OPT and endorses racial discrimination and segregation, Israel has systematically and deliberately oppressed the indigenous Palestinian people, in order to undermine and foreclose self-determination, and with the intention to maintain its regime of Jewish-Israeli domination and expand it into the OPT.
As confirmed by renowned scholars of international law, the Israeli policies and measures applied in aggregate against Palestinians for this aim meet the definition of “inhumane acts” (crimes) of apartheid in the 1973 Apartheid Convention and the Rome Statute of the ICC, in particular: forced transfer of population; persecution (systematic and severe deprivation of fundamental human rights because of affiliation with a racial group); murder; torture, unlawful imprisonment and other severe deprivation of physical liberty, and persecution because of opposition to apartheid.
On the occasion of this anniversary of the UN Declaration of Universal Human Rights, the BNC urges states, the United Nations and private enterprises to fully assume their responsibilities vis-à-vis the serious violations and crimes committed by Israel. All states must adopt measures, including sanctions, in order to end Israeli colonialism, apartheid and population transfer. No state must give recognition, aid or assistance to their maintenance and those responsible must be brought to justice.
We call on people of conscience worldwide to intensify BDS campaigns to isolate Israel’s regime of settler colonialism and apartheid in the academic, cultural, economic and military fields, in order to bring about Israel’s full compliance with its obligations under international law. This must include pressuring companies to end complicit business activity and institutions to divest. Pressure must also be increased on governments to finally adopt effective measures, starting with a comprehensive military embargo, as well as the suspension of free-trade and cooperation agreements with Israel.
 As pointed out by Miloon Kothari, former UN Special Rapporteur on Adequate Housing, the official Israeli translation of the Ezrahut (Hebrew for Citizenship) Law (1952) as “Nationality Law” is misleading. Report of the Special Rapporteur on adequate housing as a component of the right to an adequate standard of living, Miloon Kothari’, UN Commission on Human Rights, Fifty-ninth session, 15 June 2002, Footnote #4, p.23.
 See, for example, Russell Tribunal on Palestine, Cape Town Session (2011), summary of findings http://www.russelltribunalonpalestine.com/en/sessions/south-africa/south-africa-session-%E2%80%94-full-findings/cape-town-session-summary-of-findings; also, UN Special Rapporteur John Dugard, A/HRC/4/17 (29 Jan 2007); UN Special Rapporteur Richard Falk, A/HRC/16/72 (10 January 2011)