
While international law tolerates military occupation, it does not approve it, specifically one that has continued for over 40 years as in the case of Israel’s occupation of Palestinian territory. Furthermore, during that time, Israel has introduced two other elements—colonialism and apartheid. Although there are many similarities between apartheid as it was applied in South Africa and Israel’s policies and practices in the Occupied Palestinian Territory, the systems are not identical. There are features of the Israeli regime in the occupied territory that were unknown to South Africans.
This year’s Hisham B. Sharabi Memorial Lecture sponsored by
the Jerusalem Fund was delivered by Professor John Dugard. Professor Dugard is the former U.N. special rapporteur on human rights in the Occupied Palestinian Territory and visiting distinguished professor of law at Duke University. His lecture was delivered at the Palestine Centre, Washington D.C., on Friday 27 March 2009.
In his lecture Professor Dugard said,
"... I’ve just recently been to Gaza, but I can’t speak freely about my visit to Gaza. I was part of a mission established by the League of Arab States to investigate violations of human rights and humanitarian law in Gaza. We visited at the end of February for a week, and we’re still writing the report. So at this stage, I cannot really comment on our findings. You will appreciate that any attempt to attach responsibility to Israel is a sensitive issue and is bound to result in considerable criticism. So, we want to do a very careful job in preparing our report.
But what I can say is that I have been visiting Gaza twice a year since 2001, and I have on previous occasions witnessed evidence of horrendous bombings and killings and house destructions. But the most recent attack surpassed all the others. There were more killings--1,434 deaths of which 288 were children, 121 women--and it’s estimated that of the 1,400 over 900 were civilians. Of course, the Israeli government disputes this, but I think this is largely because the Israeli government tends to view anyone over the age of 16 as a potential terrorist. And certainly, the Israelis view policemen as militants whereas in fact policemen are, under international law, classified as civilians. And one must remember that the opening salvo, which was very much like an attack on Pearl Harbor, was an attack directed at a police parade in which fifteen new recruits were killed. It’s not only the number of deaths but also the manner of killing. We spoke to a number of eyewitnesses who spoke about the way in which their parents, children had been shot in cold blood between their eyes by a member of the IDF [Israeli Defense Forces] at fairly short range. I find it very difficult to believe some of these stories, but they have now been confirmed by members of the IDF. You may have read that at a military academy in Israel there was an open discussion about the conduct of the war, and many members of the IDF spoke with some horror about the way in which their fellow soldiers had behaved.
Also, some of the weaponry used was bound to cause unnecessary suffering. There was the use of white soft phosphorous which Israel has conceded it used and the use of flechettes. Both these weapons when used in densely populated areas do cause tremendous suffering. And then, there was the destruction of property that we witnessed. What was extraordinary was the number of minarets of the mosques that had been shot out. It was quite clear that members of the IDF were simply having fun targeting minarets because they serve no security purpose. And then, there was the case of the Al-Wafa Hospital which in bold letters has “HOSPITAL” on the front, and there was a shell that had gone right through the letter “H.” So, it was quite clear that they were deliberately targeting a hospital. And then, there was the Islamic University which was partially destroyed. Allegedly, its laboratories were being used to manufacture armed weapons. And then, there was the American School, which was hardly a Hamas target, which had been flattened. And then, of course, factories and businesses had been destroyed. Again, one couldn’t easily describe them as Hamas targets. So, the destruction of property and the killings were really very distressing. But as I say, we are dealing with issues of accountability and responsibility, and we would have to wait until our report is completed.
Let me just say on the subject that I’ve been really disappointed about the international response to the conflict in Gaza. The secretary general of the United Nations has initiated a limited inquiry into the bombing of U.N. property, but it goes no further. The secretary general of the United Nations did visit Gaza. I think he was the first one ever to have visited Gaza, but he carefully refrained from speaking to any of the victims or visiting any of the destroyed property other than U. N. premises. This created quite an impression, poor impression, in Gaza itself. There has been a request from 16 distinguished international lawyers and peace activists to create a proper independent inquiry commission. An approach has been made to the Security Council, but that doesn’t seem to be getting anywhere. The Human Rights Council has mandated the establishment of a commission of inquiry, but the Human Rights Council is having difficulty persuading people to join that commission. So, it seems that the commission established by the League of Arab States may well be the only independent commission of inquiry to examine this situation.
Today, I’m not going to talk about Gaza. I’m going to talk about occupation and apartheid. The mere comparison with apartheid is a very sensitive issue. I appreciate that. I should just mention this connection, it’s a subject that is likely to be raised in the Durban Review Conference in Geneva later this month or I think it’s the middle of April. There’s also a study being made of the comparisons by the South African Human Sciences Research Council, and that study group will publish its report on the subject, a fairly lengthy report running to about 300 pages, in London in May and in South Africa in June. So, this is a very topical issue even though it is regarded as offensive in certain quarters.
I will be speaking about occupation and apartheid. Let me begin with the subject of occupation. The Palestinian territory is clearly occupied territory. There’s no question about this as far as the international community is concerned in respect to the West Bank. Israel has argued that since 2005 when it withdrew its settlers and its military force from Gaza itself that it has seized to be an occupied territory, but the International Committee of the Red Cross and I think the whole of the international community, with the possible exception of the United States, rejects this argument. They take the view that Gaza is effectively occupied by Israel because Israel has control of its land borders, its sea space, its air space and it conducts military incursions fairly regularly into the territory. I think the United States’ position, announced by [former U.S. Secretary of State] Condoleezza Rice, was that it was a quite hostile entity. One doesn’t quite know what that means. But one hopes that the [U.S. President Barack] Obama administration will make it clear that it regards Gaza and the West Bank as occupied territory.
Military occupation is a regime that is tolerated by international law. It’s not approved. In terms of the Fourth Geneva Convention which regulates the conduct of the occupying power, the occupying power is obliged to care for the welfare of the occupied people and, in particular, to ensure that medical facilities and educational facilities are respected and fostered. But, of course, we all know that Israel just ignores this obligation because in Palestine the international donor community is largely responsible for the welfare of the Palestinian people. It’s quite clear that international law does not contemplate a lengthy period of occupation, a prolonged occupation in this case running to over 40 years. The Israeli government tends to take the view that the longer the occupation, the less the obligations. But I think the general accepted view is that the exact opposite applies.
So, Israel is in occupation. But over the past 40 years, we’ve seen the addition of two other elements. That is colonialism and apartheid. And this tends to aggravate the status of the Palestinian territory. I don’t think there’s any question about colonialism in the Palestinian territory, particularly in the West Bank since settlers withdrew from Gaza in 2005. We have nearly half a million Jewish settlers in the West Bank. This number is growing despite promises by successive Israeli governments that they will stop settlements. It’s interesting that constructions are taking place in some 88 of the 149 settlements in the West Bank. The growth rate in the settlements is 4.5 [percent] compared with 1.5 [percent] in Israel itself. It’s important not only to look at settlements but also at territory in the West Bank that is set aside for military purposes and as nature reserves. And someone can say that roughly 38 percent of the West Bank is off limits to Palestinians. So, there is a form of colonialism in the West Bank, and colonialism is not tolerated by international law. It’s clearly unlawful. Not only do settlements constitute a form of colonialism, but they also violate the Geneva Convention. So, that’s a clear illegality on the part of Israel.
The other element that has been introduced is that of apartheid. And it’s important to stress that apartheid is not only illegal in South Africa itself but it’s also been declared to be unlawful in international law. In 1973, there was a convention on apartheid adopted by the United Nations. Briefly, this convention provides that the infliction on members of a racial group of serious bodily or mental harm, inhumane or degrading treatment, the deliberate creation of conditions preventing the full development of a racial group and so on by denying to such a group basic human rights and freedoms when such acts are 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. So, [there] is a definition, a general definition of apartheid. This definition has now been transferred to the Rome Statute of the International Criminal Court, and the crime of apartheid is seen as a species of crime against humanity. So, it’s quite clear that apartheid is unlawful under international law. Israel, of course, argues that its policies do not constitute apartheid. It claims that there’s no racial discrimination in its practices or policies. It argues that the purpose of its occupation is simply to maintain law and order pending a peace settlement. It’s not to maintain domination of one group over another."
A full transcript can be read
here and a video viewed
here.