The crime of apartheid

In the occupied Palestinian Territories, a “matrix of control has been put into place that curbs Palestinians’ most basic human rights” [GALLO/GETTY]

South Africa, 1948.

After winning the elections, the National Party turned the racial segregation policies put in place under Dutch and British colonial rule, into something a lot more sophisticated and Machiavellian. The government classified all peoples in three separate races. White, coloured and blacks. Each race had its rights and limitations. The white minority controlled the much larger black majority .

This system of domination and separation became known as “apartheid”.

Through a combination of non-violent and armed struggle, international pressure and boycott, the system was brought to an end in 1990 (when ban on the African National Congress and other political parties was lifted) and Nelson Mandela was elected president of the country in 1994, after an overwhelming victory of its party, the ANC in the universal elections.

In the early 70s, many countries opposed to the regime, decided that something of a legal nature was needed to put even more pressure on the South African government. The International Convention on the Suppression and Punishment of the Crime of Apartheid (ICSPCA) was ratified by the United Nations General Assembly (UNGA) in 1973.

It defined the crime of apartheid as “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.”

In 2002, the Rome Statute of the International Criminal Court, defined the crime of apartheid as inhumane acts of a character similar to other crimes against humanity “committed in the context of an institutionalised 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.”

Both definitions made something very clear. The crime of apartheid was a crime against humanity that went far beyond South Africa. Any state using segregatory laws, racial discrimination and racially based policies could be found guilty of the crime of apartheid.

Palestine (under British Mandate), May 1948.

On May 14, 1948 – following the hasty departure of the British troops from Palestine – David Ben Gurion, head of the World Zionist Organisation and President of the Jewish Agency for Palestine, proclaimed the birth of the state of Israel. Lacking a constitution, the state was defined in its basic laws as the “Jewish and Democratic State”.

In 1967, after what was called the “Six Day War” by Israelis and “An-Naksah” by Palestinians, Israel annexed Jerusalem and began occupying the West Bank and Gaza (known today as occupied Palestinian Territories oPT).

A vital question started to develop in the minds of the Israeli establishment from then on. How to remain a “Jewish State” while 20 per cent of its citizens are Palestinian and while occupying (and therefore controlling) nearly 4 million Palestinians? What is going to happen if the Palestinians actually become the majority in the Holy Land?

This was simply unimaginable for Israel, so its leaders started to put into place policies meant to ensure that the Jews would always remain a majority over the Palestinians. To face the “demographic threat” that the Palestinians posed, the Israeli government worked very hard to make certain the law would always be on their side.

In Israel itself more than 30 discriminatory laws have been passed in the last few decades. Every Israeli government has also worked on the “Judaisation” of the country while stripping Palestinians of their citizenship to the greatest extent possible.

In the oPT, a matrix of control has been put in place, one that curbs Palestinians’ most basic human rights. A maze of checkpoints, roadblocks, settler-only roads have been created since 1967. In the meantime, Israel started to transfer its population to the West Bank. More than 500,000 Israelis now live in huge colonies all over the West Bank. Those colonies control all the most essential natural resources, such as water aquifers.

In 2002, the construction of the 710 km-long Separation Wall began deep inside the West Bank.

Separation/Apartness in Afrikaans translates as apartheid.

In 2009, a study by prominent South African and International Academics came to the conclusion that Israel was practising Apartheid and Colonialism in the occupied Palestinian Territories.

“Regarding colonialism, the team found that Israel‘s policy and practices violate the prohibition on colonialism which the international community developed in the 1960s in response to the great decolonisation struggles in Africa and Asia.

Israel‘s policy is demonstrably to fragment the West Bank and annex part of it permanently to Israel, which is the hallmark of colonialism. Israel has appropriated land and water in the oPT, merged the Palestinian economy with Israel‘s economy, and imposed a system of domination over Palestinians to ensure their subjugation to these measures. Through these measures, Israel has denied the indigenous population the right to self-determination and indicated the clear intention to assume sovereignty over portions of its land and natural resources. Permanent annexation of territory in this fashion is the hallmark of colonialism.

“Regarding apartheid, the team found that Israel‘s laws and policies in the oPT fit the definition of apartheid in the International Convention on the Suppression and Punishment of the Crime of Apartheid. Israeli law conveys privileges to Jewish settlers and disadvantages Palestinians in the same territory on the basis of their respective identities, which function in this case as racialised identities in the sense provided by international law. Israel‘s practices are corollary to five of the six ‘inhuman acts‘ listed by the Convention.

A policy of apartheid is especially indicated by Israel‘s demarcation of geographic ‘reserves‘ in the West Bank, to which Palestinian residence is confined and which Palestinians cannot leave without a permit. The system is very similar to the policy of ‘Grand Apartheid‘ in apartheid South Africa, in which black South Africans were confined to black homelands delineated by the South African government, while white South Africans enjoyed freedom of movement and full civil rights in the rest of the country.”

In November this year, a group of legal experts, academics, witnesses, jurists and personalities will meet in Cape Town, South Africa for the 3rd International Session of the Russell Tribunal on Palestine .

This group will go further than previous studies on the question as it will address apartheid against the Palestinian people as a whole and will look into possible consequences for the International Community and legal remedies.

Led by luminaries such as Archbishop Desmond Tutu and Stephane Hessel, the jury panel (composed of South African heroes such as Ronnie Kasrils and Yasmin Sooka as well as British Barrister Michael Mansfield, US activist Cynthia McKinney, US author Alice Walker, Nobel Prize Winner Mairead Maguire, Spanish Judge Martin Pallin, French lawyer Gisele Halimi and Mali former Minister of Culture Aminata Traore) will listen to testimonies from legal experts and on the ground witnesses (including Winnie Mandela, John Dugard, Raji Surani, and Leah Tsemel) coming from all over the world that will focus on examining Israeli policies towards the Palestinians in detail.

After hearing those people, as well as an envoy of the state of Israel (that has been invited), the jury will deliberate and issue a final opinion.

What if the jury finds that Israel’s policies towards the Palestinian people amount to the crime of apartheid defined in the 1976 convention and the 2002 Rome Stature of the ICC?

Duty to prosecute under universal jurisdiction exists under the 1976 Apartheid Convention and under general international law. States (third parties) have a duty to cooperate to end apartheid and not to assist the apartheid regime in question. The case, for added weight, could even be taken to the International Court of Justice.

Will states fulfil their duties? Or will political interest come first, as usual?

As it is often the case, it might have to be down to the people of the world – who want to live in a world based on equality, equal rights for all and justice – to take those findings and make it theirs.

Will they be up to the challenge? Our future depends on it.

Frank Barat is a human rights activist and coordinator of the Russell Tribunal on Palestine.
He has edited two books “Gaza in Crisis“ (Haymarket/Penguin) with Noam Chomsky and Ilan Pappe and the forthcoming “Corporate Complicity in Israel‘s Occupation“ (Pluto Press) with Asa Winstanley.

The views expressed in this article are the authors’ own and do not necessarily reflect Al Jazeera’s editorial policy.