The Daily Clarity

Is it legally apartheid? – the Palestine conundrum

There is a veil of legal obscurification spread over the Israel-Palestine conflict. There are multiple legal debates – is Palestine occupied or disputed territory, is Israel executing colonial power, but there is probably no more emotively charged question, than is Israel’s treatment of Palestine apartheid governance?  The definitions are important. There are specific  provisions that prescribe legal treatment of an occupied peoples under the Geneva convention,  as we have previously reported.  There are restrictions of governance  that applied to  colonial powers . However, it may be in the definition of apartheid,  also prohibited under international law, that the heart of the conundrum may be found. The merest suggestion of the word apartheid in relation to the Israel-Palestine conflict is enough to cause eruption, and while the  apartheid debate is charged with emotion, it  may be better understood by the application of academic analysis

A recent lecture by South African international law expert and Professor, John Dugard, dealt with the definition of  apartheid as observed in his country, and as proscribed  under international law.  Dugard’s work on the topic  is at the epicenter of the debate. A South African who lived through real-world apartheid, a world -renowned  international law expert and academic, a man who has held Professorships at multiple prestigious universities, his opinion on a legal interpretation, regardless of one’s leaning on the debate, should not be taken lightly. Dugard has an impressive resume in his field:

From 1975-1977, Dugard was the Dean and a Professor of Law at the University of Witwatersrand (Johannesburg, South Africa). From 1978-1990, he was the Director of the University of Witwatersrand’s Centre for Applied Legal Studies, “a research center committed to the promotion of Human Rights in South Africa”.

He has held visiting professorships at Princeton University, Duke University, UC Berkeley and University of Pennsylvania, and University of New South Wales (Australia). He is a member of the Institut de Droit International. Dugard was Director of the Lauterpacht Centre for International Law at the University of Cambridge from 1995-1997. In 1998, he was appointed as Chair in Public International Law at Leiden University in the Netherlands and as Director of the advanced LLM programme in Public International Law.

Since 1998 he has held various roles with UN bodies, primarily in a volunteer capacity,  and has stated that he has visited the Gaza twice a year since 2001. This is a man whose legal qualifications, knowledge of apartheid legislation, and research international conventions cannot be dismissed easily.

From his review of the South Africa apartheid history, Dugard defines three primary characteristics of an apartheid regime. He defines these as:

• Grand Apartheid – this being the command of territorial supremacy
• Petty Apartheid – the discrimination against another peoples by race or creed
• Apartheid Security Apparatus – this being a developed governmental security functionality dedicated to the enforcement of apartheid provisions

In relation to the Israel -Palestine conflict, Dugard sees evidence of all three elements of apartheid,  as also employed by the South Africa regime,  and as such prohibited  by international law. In relation to Israel and Grand Apartheid, Dugard cites the 500, ooo or more Israeli settlers resident illegally in  the West bank. This is  a number still increasing, and expected to accelerate under Netanyahu’s regime.  He cites the fact that Palestinians are proscribed from building without permits (which are rarely if ever granted) in Zone C of the West Bank or in East Jerusalem. He also cites the lack of a contiguous territory _ and as also in  Jimmy Carter ‘s contentious book on Israeli apartheid). Dugard also references the control of territorial resources such as water. His final argument to support Israel’s grand apartheid in the absence of a Palestinian territory that is not divided such as the West Bank and the Gaza, or riddled with  ‘Swiss cheese’  holes by Israeli settlements.

Dugard then proceeds to mount an argument that Israel is also pursuing petty apartheid, that is racial discrimination. He cites that Palestinians are not allowed in the seam zone, the area between the green zone and the security walls without permit while Israelis enjoy free access. He shows that the settler-only roads on the West Bank that Palestinians are in practice denied access to is evidence of petty apartheid.  He cites the restrictions that apply to Palestinians traveling in the area such as  permit requirements and multiple check points in addition to security. One of the most serious racial discrimination’s he identifies is that Israel prohibits  family unification (i.e a that a family member, such as a potential bride is not allowed under Israeli law to  join a Palestinian Arab in Israel). In denial of family reunification, Dugard cites similar prohibitions under the South African apartheid regime that caused civil resistance there

In  relation to security apparatus, Dugard sees a great deal of evidence to support the case. He cites as a primary indicator that  Israel has the right to try Palestinians in  military courts with far ranging emergency powers and outside normal legal process. He evidences that there are in excess of 11,o00  Palestinians held as prisoners by Israel and with many allegations of  torture. He also cites the wide ranging provisions of Israeli security personnel in relation to stop and seize, summary arrest without habeas corpus provisions, right to summary killing if security requirements dictate and on. This appears to be the least contentious area of debate as the Israeli security forces have powers well in excess of normal democratic societies.

So as defined and argued by Dugard, Israeli governance indicates the three required traits of apartheid. If the case is ever argued under international law, such as under the jurisdiction of the International Criminal Court, then the prohibitions and conventions that apply to apartheid would definitely be applicable. Dugard finished his analysis by wryly observing that South Africa was subject to widespread international censure for its apartheid policies. In part, the international sanctions led to the repeal of apartheid law there. In his close, Dugard seemed less hopeful that Israel would face similar sanctions in the short term.