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2

Third international session – Cape Town, 5-7 November 2011

INTRODUCTION

The Cape Town session of the Tribunal was organised by:

The International Organising Committee (IOC): Ken Coates (†), Pierre Galand, Stephane

Hessel, Marcel-Francis Kahn, Robert Kissous, Francois Maspero, Paulette Pierson-Mathy,

Bernard Ravenel, Brahim Senouci, Gianni Tognoni, and the Committee’s International

Secretariat: Frank Barat and Virginie Vanhaeverbeke.

The South African National Support Committee.

The Algerian, Belgian, British, Catalan, Chilean, Danish, DRC, Dutch, French, German,

Indian, Italian, Irish, Israeli/Palestinian, Luxembourg, Portuguese, Spanish, South African and

Swiss support committees.

The International Organising Committee wishes to thank all the individuals, organisations and

foundations that facilitated the convening of the third session of the Russell Tribunal on

Palestine.

The findings of the jury following the Cape Town session of the Russell Tribunal on Palestine

are set out below.

The Jury of the Russell Tribunal on Palestine (hereinafter “the RToP”) consists of the following

individuals:

· Stéphane Hessel, Ambassadeur of France, Former Diplomat

· Mairead Corrigan Maguire, Nobel Peace Prize Laureate, 1976, Northern Ireland

· Ronnie Kasrils, Writer and Activist, South Africa

· Michael Mansfield, Barrister, President of the Haldane Society of Socialist Lawyers,

UK

· Jose Antonio Martin Pallín, Emeritus Judge, Chamber II, Supreme Court, Spain

· Cynthia McKinney, Former member of the US congress, USA

· Yasmin Sooka, Executive Director of the Foundation for Human Rights, South Africa

· Alice Walker, Author and Activist, USA

· Aminata Traore, Author and former Minister of Culture of Mali, Mali

3

The RToP adopted the following findings in the following order:

I. Establishment of the RToP 4

II. Terms of reference of the RToP 5

III. Procedure 5-7

IV. Admissibility 7

V. Merits 8-29

VI. Legal consequences 29-33

VII. Action required & recommended 33-35

VIII. Continuation of the proceedings 35

IX. Annex & Bills 36-39

4

I. ESTABLISHMENT OF THE TRIBUNAL

1.1 The Russell Tribunal on Palestine (RToP) is an international citizen-based Tribunal of

conscience created in response to the demands of civil society (NGOs, charities, unions,

faith-based organisations) to inform and mobilise public opinion and put pressure

on decision makers. In view of the failure to implement the Advisory Opinion of 9

July 2004 of the International Court of Justice (ICJ) concerning the construction by Israel

of a wall in the Occupied Palestinian Territory, the failure to implement resolution

ES-10/15 confirming the ICJ Opinion, adopted by the United Nations General Assembly

on 20 July 2004, and the Gaza events of December 2008 – January 2009, committees

were established in different countries to promote and sustain a citizen’s initiative

in support of the rights of the Palestinian people.

1.2 The RToP is imbued with the same spirit and espouses the same rigorous rules as

those inherited from the Tribunal on Vietnam (1966-1967), which was established by

the eminent scholar and philosopher Bertrand Russell, and the second Russell Tribunal

on Latin America (1974-1976), organized by the Lelio Basso International Foundation

for the Rights and Liberation of Peoples.

1.3 Its International Support Committee is composed of a Nobel Prize laureate, a former

United Nations Secretary-General, a former United Nations Under-Secretary-General,

two former heads of state, other persons who have held high political office, and many

representatives of civil society, writers, journalists, poets, actors, film directors,

scientists, professors, lawyers and judges.

1.4 Public international law constitutes the legal frame of reference of the Russell

Tribunal on Palestine.

1.5 The Tribunal proceedings comprise a number of sessions. The first session of the

RToP was held on 1, 2 and 3 March 2010 in Barcelona. It was hosted and supported

by the Barcelona National Support Committee and the Office of the Mayor of

Barcelona, under the honorary presidency of Stephane Hessel, Ambassadeur de

France. The second session of the RToP was held in London on 20, 21 and 22

November 2010. The findings of the Barcelona and London sessions may be consulted

at the following address: www.russelltribunalonpalestine.com/ .

5

II. TERMS OF REFERENCE OF THE RToP AT THE CAPE TOWN SESSION

2.1 The Tribunal takes it as an established fact that some aspects of Israel’s behaviour

have already been characterised as violations of international law by a number of

international bodies, including the UN Security Council, General Assembly and the

International Court of Justice (ICJ) (see paragraph 19 of the Barcelona findings). The

questions submitted to the RToP by the International Organising Committee at the

Cape Town session is whether Israel’s policy and certain practices affecting the

Palestinian population residing in Israeli territory and in the Palestinian territories

occupied by Israel:

1. amount to a breach of the international legal prohibition of apartheid?

2. constitute persecution as a crime against humanity?

2.2 In the event of affirmative findings, what legal consequences and obligations arise for

Israel and third states?

III. PROCEDURE

3.1 The Organising Committee submitted the aforementioned questions to experts who

were selected on the basis of their familiarity with the facts of the situation. With a

view to respecting the adversarial principle, the questions were also submitted to the

Israeli authorities by letters dated 15th August 2011 addressed to President Shimon

Peres. Furthermore, Israel was invited to send representatives to the Tribunal to

express its point of view.

The experts submitted written reports to the Tribunal.

Israel did not reply to the letters sent. The RToP regrets its decision to remain silent.

Written or oral replies on the part of Israel would have assisted the RToP in preparing

its findings.

3.2 The written stage of the proceedings was followed by an oral stage, during which the

Tribunal heard statements by experts and witnesses called by the Organising

Committee. The following experts and witnesses were heard (in alphabetical order):

6

· Jazi Abu Kaf, member of the Regional Council for the 45 unrecognised

Bedouin villages of the Naqab.

· Marianne Blume, Classical philologist who worked in Gaza for 10 years.

· Allan Boesak, South African Dutch Reformed Church Cleric, Politician and

anti-apartheid activist.

· Luciana Coconi, Author of several essays and articles about Human Rights

and International conflicts in Afghanistan, Middle East, Western Sahara and others.

· Francois Dubuisson, Professor of International Law at the Free University of

Brussels. Author of several articles on legal aspects of the Israeli-Palestinian conflict.

· John Dugard, South African Professor of Internatoinal Law and Former

Special Rapporteur on Human Rights in the Palestinian Occupied Territories.

· Max Du Plessis, Associate Professor of International Law at the University of

KwaZulu-Natal in Durban, South Africa.

· Ran Greenstein, Associate Professor in the Department of Sociology at the

University of the Witwatersrand in Johanesburg, South Africa.

· Mahmoud Hassan, Palestinian Lawyer at Addameer, a prisoner support and

human rights organisation based in Jerusalem.

· Shawqi Issa, Human Rights lawyer and General Director of Ensan Center for

Human Rights in Bethlehem.

· Shawan Jabarin, Veteran Human Rights activists and director of Al-Haq

· Ingrid Jaradat, Founder member of BADIL and on Executive Committee of

the Boycott National Committee in Palestine.

· Jamal Juma'a, Coordinator of the Palestinian organisation Stop the Wall.

· David Keane, Lecturer in Law at Middlesex University, London

· Mohammed Khatib, member of the Bil'in Popular Committee Against the

Wall and coordinator of the Popular Struggle Coordination Committee.

7

· Rafaelle Maison, Professor of Law at the University of Paris Sud. She works

mostly in the fields of Public International Law and International Criminal Law.

· Emily Schaeffer, American-Israeli Human Right lawyer and Activist based in

Tel-Aviv, Israel.

· Joseph Schechla, Coordinator of the Habitat International coalition's Housing

and Land Rights network.

· Raji Sourani, Palestinian Human Rights Lawyer and Director of the

Palestinian Centre Human Rights in Gaza.

· Lea Tsemel, Israeli lawyer and legal adviser and Board member of the Public

Committee Against Torture in Israel.

· Zwelinzima Vavi, General Secretary of Congress of South African Trade

Unions (COSATU) and Vice-Chairperson of the Millenium Labour Council.

· Rafeef Ziadah, Palestinian Human Rights Activist, trade unionist and spoken

word artist.

· Haneen Zoabi, member of the Knesset representing the Balad party.

IV. ADMISSIBILITY

4.1 As indicated at 3.1 above, the Israeli Government was invited to present its case before

the Tribunal but chose not to exercise this right and provided no answer to

correspondence from the RToP.

4.2 When considering the issues set out at 2.1 above, the Tribunal will refer to its previous

findings of violations of international law by Israel (at the Barcelona session). Israel’s

absence from the present proceedings, here and in Barcelona and London, is not an

impediment to the admissibility of witness evidence and expert reports on the

violations. In passing judgment on violations of international law allegedly committed

by a state that is not represented before the Tribunal, the Tribunal is not breaching the

rule of mutual agreement among the parties that is applicable before international

judicial bodies responsible for the settlement of disputes between states (see the

Monetary Gold and East Timor cases, ICJ Reports, 1954 and 1995). The work of this

body is not comparable to that involved in a dispute referred, for instance, to the

International Court of Justice: the facts presented as violations of international law

committed by Israel in the Occupied Palestinian Territories have been characterized as

8

such by the United Nations General Assembly and the Security Council, and also by a

number of reports such as those of the Special Committee to Investigate Israeli

Practices Affecting the Human Rights of the Palestinian People and Other Arabs of the

Occupied Territories and the report of the United Nations Fact-Finding Mission on the

Gaza Conflict, known as the Goldstone Report.

V. MERITS

5.1 The Tribunal will address the question of apartheid (section A below); that is, whether

Israel’s rule over the Palestinian people may be characterized as a regime of apartheid,

with its individual actions constituting crimes of apartheid; and that of persecution

(section B below).

A. Apartheid

5.2 The Tribunal has made findings below with regard to Israel’s policies and practices

vis-a-vis the Palestinian people with reference to the international legal prohibition of

apartheid under the following headings:

1. The definition and status of apartheid under international law

2. Application of the definition of apartheid to Israeli policies and practices vis-a-vis

the Palestinian people

(1) THE DEFINITION AND STATUS OF APARTHEID UNDER INTERNATIONAL LAW

i - The definition of apartheid

5.3 Apartheid is the Afrikaans word for ‘separateness’ or ‘separate development’ that was

used to designate the official state policy of racial discrimination implemented in

South Africa between 1948 and 1994. Indeed, ‘apartheid’ came to be prohibited by

international law because of the experience of apartheid in southern Africa, which had

its own unique attributes. However, the legal definition of apartheid applies to any

situation anywhere in the world where the following three core elements exist: (i) that

two distinct racial groups can be identified; (ii) that ‘inhuman acts’ are committed

against the subordinate group; and (iii) that such acts are committed systematically in

the context of an institutionalised regime of domination by one group over the other.

5.4 Apartheid acquired the above specific legal meaning in international law by virtue of

treaties enacted from the 1960s onwards. The crime of apartheid involves individual

inhuman acts committed in the context of the abovementioned institutionalised regime.

As the question to be addressed by the Tribunal is whether Israeli policies and

practices affecting the Palestinian population may be characterised under international

9

law as apartheid, the Tribunal must first lay out in more detail the bases and content of

the legal definition.1

(a) International Legal Treaties on apartheid

5.5 The definition of apartheid applied by the Tribunal is based primarily on the 1973 Con

vention on the Suppression and Punishment of the Crime of Apartheid (the ‘Apartheid

Convention’) as the most comprehensive articulation of the meaning of apartheid under

international law, but also draws on the International Convention for the Elimination of

all forms of Racial Discrimination (ICERD) and the Rome Statute of the International

Criminal Court (ICC).

ICERD

5.6 Adopted in 1965, ICERD was the first international legal instrument that expressly

prohibited apartheid, with Article 3 specifying the obligation of States parties to the

Convention to oppose such a regime:

States Parties particularly condemn racial segregation and apartheid and undertake to

prevent, prohibit and eradicate all practices of this nature in territories under their

jurisdiction.

Apartheid Convention 1973

5.7 ICERD provides no precise definition of apartheid, however. The Apartheid

Convention was adopted in 1973 in order to make it possible “to take more effective

measures at the international and national levels with a view to the suppression and

punishment of the crime of apartheid.” The Apartheid Convention refers directly to

Article 3 of ICERD in its preamble and is intended to complement the requirements of

Article 3 of ICERD. Article 1 of the Apartheid Convention builds on earlier

resolutions of the UN General Assembly by declaring apartheid to be a crime against

humanity.2 Notably, Israel voted with the majority in favour of that resolution.3 As a

result, the Convention obliges States parties to adopt legislative measures to suppress,

discourage and punish the crime of apartheid and makes the offence an international

crime which is subject to universal jurisdiction.4

5.8 Article 2 of the Apartheid Convention provides a clear definition of what constitutes

apartheid for the purposes of international law. It defines apartheid as “inhuman acts

1 The following section draws primarily on the expert testimony of Max du Plessis.

2 See UNGA Resolution 2202 A (XXI) B, 16 December 1966.

3 Ibid. Only South Africa voted against it. The vote was passed by 99 votes to 1.

4 Elsewhere, in the realm of international humanitarian law (the law of armed conflict), apartheid was included

as a grave breach in the 1977 Additional Protocol I to the Geneva Conventions. Other treaties of international

human rights law have also acknowledged and reinforced the prohibition of apartheid, including

the 1979 Convention on the Elimination of Discrimination Against Women (CEDAW) which emphasises

that “the eradication of apartheid, all forms of racism, racial discrimination, colonialism, neo-colonialism,

aggression, foreign occupation and domination and interference in the internal affairs of States is essential

to the full enjoyment of the rights of men and women.”

10

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”, and goes on to enumerate a list of such inhuman acts.

ICC Statute

5.9 The formulation used in Article 7(2)(h) of the Rome Statute of the International

Criminal Court, adopted in 1998, is very similar, defining 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 and committed with the

intention of maintaining that regime.”

5.10 The following sections address the three core elements of the definition of apartheid:

the requirement of two distinct racial groups; the commission of acts listed as

‘inhuman acts’ of apartheid; and the institutionalised nature of the domination.

(b) Distinct racial groups

5.11 The definition of apartheid requires domination by one racial group over another, thus

requiring two distinct racial groups. The Apartheid Convention itself does not define a

racial group. ICERD, however, gives a broad construction to the meaning of the term

‘racial’, with racial discrimination including discrimination based on race, colour,

descent, or national or ethnic origin. The meaning of a racial group for the purposes of

ICERD is established as a broad and practical one. In essence, it means an identifiable

group. If a group identifies itself as such, and is identified as such by others, for

example through discriminatory practices, then it comes under the protection of the

Convention.5

5.12 The concept of ‘race’ has long been shown as a social construct, not a biological

category. International human rights law allows wider scope for the meaning of race

than traditional ‘black vs. white’ parameters, and the UN Committee on the

Elimination of all forms of Racial Discrimination has included groups that would not

be considered ‘races’ in that traditional sense, including caste groups in South Asia,

non-citizen groups such as migrant workers, and nomadic peoples. As testimony to the

Tribunal by experts on the question of race in international law has shown, the

determination of a racial group under international law is ultimately not a scientific

question, but a practical one.6

5 Testimony of Dr. David Keane

6 Testimonies of Dr. David Keane and Ran Greenstein.

11

(c) Constitutive acts of apartheid

5.13 Article 2 of the Apartheid Convention and Article 7(2)(j) of the Rome Statute both

refer to inhuman acts that may constitute apartheid when committed in a context of

racial domination, while Article 5 of ICERD enumerates a list of rights which must be

guaranteed to all humans free from racial discrimination. The Tribunal draws

principally on Article 2 of the Apartheid Convention as the primary guiding

framework regarding the definition of apartheid. The following “inhuman acts” are

established in Article 2 as constitutive of apartheid:

“For the purpose of the present Convention, the term ‘the crime of apartheid’,

which shall include similar policies and practices of racial segregation and

discrimination as practised in southern Africa, shall apply to the following

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:

o Denial to a member or members of a racial group or groups of the right to life

and liberty of person:

By murder of members of a racial group or groups;

By the infliction upon the members of a racial group or groups

of serious bodily or mental harm, by the infringement of their

freedom or dignity, or by subjecting them to torture or to cruel,

inhuman or degrading treatment or punishment;

By arbitrary arrest and illegal imprisonment of the members of

a racial group or groups;

o Deliberate imposition on a racial group or groups of living conditions

calculated to cause its or their physical destruction in whole or in part ;

o Any legislative measures and other measures calculated to prevent a racial

group or groups from participation in the political, social, economic and

cultural life of the country and the deliberate creation of conditions preventing

the full development of such a group or groups, in particular by denying to

members of a racial group or groups basic human rights and freedoms,

including the right to work, the right to form recognized trade unions, the right

to education, the right to leave and to return to their country, the right to a

nationality, the right to freedom of movement and residence, the right to

freedom of opinion and expression, and the right to freedom of peaceful

assembly and association;

o Any measures including legislative measures, designed to divide the

population along racial lines by the creation of separate reserves and ghettos

for the members of a racial group or groups, the prohibition of mixed

marriages among members of various racial groups, the expropriation of

landed property belonging to a racial group or groups or to members thereof;

o Exploitation of the labour of the members of a racial group or groups, in

12

particular by submitting them to forced labour;

o Persecution of organizations and persons, by depriving them of fundamental

rights and freedoms, because they oppose apartheid.”

5.14 The language of the Apartheid Convention indicates that this list is illustrative rather

than exhaustive, and that not each and every inhuman act described is necessary for a

regime of apartheid to exist. A broader potential range of policies is implied by the

qualifier of “similar policies and practices … as practiced in southern Africa” (emphasis

added). The “hall include…”wording suggests that not all practices cited in

Article 2 are required for a positive finding of apartheid.7 That a narrower range of

policies could constitute a case of apartheid is demonstrated by the history of

apartheid South Africa, where, for example, Article 2(b) regarding the intended “physical

destruction” of a group was not applicable. South Africa’s Truth and Reconciliation

Commission concluded in this regard that the apartheid regime did not sustain an

intentional policy to physically destroy the black population. Such conclusions on individual

practices do not preclude an overall finding of a comprehensive system that

has not only the effect but the purpose of maintaining racial domination by one racial

group over the other.

(d) A systematic and institutionalised regime

5.15 From both the Apartheid Convention and Rome Statute formulations, it is clear that

the essence of the definition of apartheid is the systematic and institutionalised

character of the discrimination involved. This systematic element distinguishes the

practice of apartheid from other forms of prohibited discrimination. Thus, for the

inhuman acts listed above to constitute a regime of apartheid, it is not enough that they

occur in random or isolated instances. They must be sufficiently widespread,

integrated and complementary to be described as systematic. Such acts must also be

sufficiently rooted in law, public policy and formal institutions to be described as

institutionalised.

ii. The status of the prohibition of apartheid

5.16 The prohibition of apartheid is established as part of customary international law

(meaning that even states that are not party to the conventions prohibiting apartheid

are still bound to uphold the prohibition) and as a norm of jus cogens (the most

fundamental category of international legal rules, from which no derogation is ever

permitted). It is also a universal prohibition, which although formulated in response to

the situation in southern Africa was always intended to apply beyond southern Africa.8

7 Testimony of Max du Plessis.

8 Testimony of Max du Plessis.

13

(2) APPLICATION OF THE DEFINITION OF APARTHEID TO ISRAELI POLICIES AND

PRACTICES VIS-À-VIS THE PALESTINIAN PEOPLE

5.17 The Tribunal now moves to consider whether Israeli policies and practices affecting

the Palestinian population may be characterised as apartheid within the meaning of

international law, with reference to the core elements of the definition of apartheid as

outline above.

i. Distinct Racial Groups

5.18 Palestinians identify themselves as a group of people who share a common origin,

history and culture, as well as social and political structures and networks that have

ensured a continuing bond despite forced displacement and fragmentation. The entire

Palestinian people is a single group, regardless of current geographic location or

constructed legal status. All Palestinians—efugees in exile; those under military

occupation in the West Bank (including Jerusalem) and Gaza Strip; those who have

remained in the territory that is now Israel—dentify themselves as indigenous to

Palestine, where they lived and held citizenship until the end of the British Mandate in

1948. They are considered a single people entitled to collective self-determination.9

5.19 Under Israeli law and policy, group membership is an official category imposed and

monitored by the state, not simply a voluntary identity.10 Israeli Jews are a group

unified by law, sharing the same legal status wherever they reside, while Palestinian

Arabs are a separate group, sub-divided into citizens, occupied residents (whose

residence rights may be lost if they leave the territory in which they live), and refugees

who do not have the right to return to any part of historic Palestine. No such

restrictions apply to Jews: in fact, those who are not citizens already can acquire

Israeli citizenship automatically by relocating to Israel or the Occupied Palestinian

Territory. The law that enables this, Israel’s 1950 Law of Return, codifies the descentbased

aspect of Jewish identity. Palestinians who hold Israeli citizenship are not

defined in the same legal category as Jewish citizens, who enjoy the further privileges

of ‘Jewish nationality’. The Jewish nation considers itself a distinct group with a

unique claim as the historical indigenous people of Palestine.11

5.20 The existence of ‘racial groups’ is fundamental to the question of apartheid. The

situation in Israel/Palestine is not defined in terms of traditional conceptions of ‘race’

as it was in apartheid South Africa. On the basis of expert evidence heard during the

Cape Town session, the Tribunal concludes that international law gives a broad

meaning to the term ‘racial’ as including elements of ethnic and national origin, and

therefore that the definition of ‘racial group’ is a sociological question, not a

9 Testimony of Ingrid Jaradat.

10 Testimony of Ran Greenstein.

11 Testimony of Joseph Schechla.

14

biological one. Perceptions (including self-perceptions and external perceptions) of

Israeli Jewish identity and Palestinian identity illustrate that Israeli Jews and

Palestinian Arabs can readily be defined as distinct racial groups for the purposes of

international law. From the evidence received, it was clear to the jury that two distinct,

identifiable groups exist in a very practical sense and that the legal definition of ‘racial

group’ applies to all circumstances in which the Israeli authorities have jurisdiction

over Palestinians.

ii. Constitutive “cts of apartheid”5.21 The Tribunal’s application of the constitutive acts of apartheid to Israel’s practices

follows the headings and structure of Article 2 of the Apartheid Convention as

detailed above. Individual inhuman acts committed in the context of such a system are

defined by international law as crimes of apartheid. The RToP heard abundant

evidence of practices that constitute the ‘inhuman acts’ set out below perpetrated

against the Palestinian people by the Israeli authorities.

“) Denial to a member or members of a racial group or groups the right to life and

liberty of person:

By murder of members of a racial group or groups”5.22 The RToP received evidence of widespread deprivation of Palestinian life through

military operations and incursions, a formal policy of ‘targeted killings’, and the use

of lethal force against demonstrations.

5.23 Examples of large-scale Israeli military operations in which Palestinian civilians have

been targeted and disproportionately killed include Operation ‘Defensive Shield’

(2002), Operation ‘Determined Path’ (2002), Operation ‘Rainbow’ (2004), Operation

‘Summer Rains’ (2006), Operation ‘Autumn Clouds’ (2006), Operation ‘Hot Winter’

(2008), and Operation ‘Cast Lead’ (2008-9).12

5.24 The use of lethal force against Palestinian demonstrations is a frequent factor of life in

villages such as Bil’in and Ni’lin.13

5.25 Ongoing daily military incursions that involve low but consistent Palestinian casualty

figures.14 However, lethal Israeli incursions into the OPT have been so frequent that in

the last 10 years some 6,418 Palestinians have been killed by Israeli security forces

12 On Operation Cast Lead, see Human Rights in Palestine and Other Occupied Arab Territories. Report

of the United Nations Fact-Finding Mission on the Gaza Conflict, UN doc. A/HRC/12.48, 25 September

2009. See also the findings of the UN Committee Against Torture quoted in Luciana Coconi, Apartheid

Contra El Pueblo Palestino (Madrid: Ediciones del Oriente y del Mediterraneo, 2010), p. 95.

13 Testimony of Mohammed Khatib.

14 Testimony of Raji Sourani.

15

according to Israeli human rights group B’Tselem.15

5.26 Palestinians living within Israel have also been a target of lethal force as when 13

peaceful protestors were killed by Israeli police in October 2000

5.27 Through an official state policy of “targeted killings” - which constitute extrajudicial

executions –the Israeli military targets Palestinian activists and members of armed

groups, with the aim of suffocating any possible resistance to Israel’s rule. These

killings affect not only the “targets”, but large numbers of civilians including family

members and civilians. Hundreds of Palestinian civilian fatalities have resulted from

air strikes and targeted killing operations by Israeli commandos.

“y the infliction upon the members of a racial group or groups of serious bodily or

mental harm, by the infringement of their freedom or dignity, or by subjecting them to

torture or to cruel, inhuman or degrading treatment or punishment”5.28 The Tribunal heard evidence of the substantial history and continuing practices of

torture and ill-treatment of Palestinian prisoners in Israeli prisons. Incarcerated

Palestinians are categorised as “security prisoners” and subject to a specific regime of

interrogation by the Israeli Security Agency, which often uses methods that amount to

ill-treatment and torture.16

Jewish-Israeli prisoners, regardless of their crimes, are generally not categorised as

security prisoners and are not subject to analogous interrogation or ill-treatment.

5.29 The Tribunal also notes forms of cruel, inhuman and degrading treatment through:

movement restrictions that subject Palestinians to humiliation by Israeli soldiers and

Palestinian women being forced to give birth at checkpoints;17 house demolitions as a

form of inhuman and degrading treatment with severe psychological consequences for

men, women and children.18

5.30 The RToP therefore finds that Palestinians are subjected to torture and ill-treatment in

the context of widespread deprivation of liberty through policies of arbitrary arrest and

administrative detention without charge. The Tribunal finds that such measures

frequently go beyond what is reasonably justified by security concerns and amount to

a form of domination over the Palestinians as a group.

15 See statistics provided by B’Tselem http://old.btselem.org/statistics/english/Casualties.asp

16 Testimony of Mahmoud Hassan.

17 Testimony of Jamal Juma’a.

18 Testimony of Jeff Halper.

16

“y arbitrary arrest and illegal imprisonment of the members of a racial group or

groups”5.31 Palestinians in the occupied territories are routinely subject to arbitrary arrest and

detention (including lengthy periods of pre-trial detention without access to legal

assistance) and fall under the jurisdiction of a military court system that falls far short

of international standards for fair trial. An entirely different legal system applies to

Israeli Jews, who are subject to Israeli civil law and civil courts, with significantly

enhanced procedural and substantive rights from arrest through to sentencing.19

5.32 Israel’s widespread practice of administrative detention without charge or trial,

involves detention periods of up to 6 months at a time which can be, and often are,

renewed and prolonged indefinitely, affecting Palestinian adults and minors, whereas

not applied to Israeli Jews.20

“) Deliberate imposition on a racial group or groups of living conditions calculated to

cause its or their physical destruction in whole or in part”5.33 The Tribunal considers that although Israeli policies of blockade and collective

punishment in the Gaza Strip in particular and consequent restrictions on vital supplies

of food and medicine entail grave consequences for Palestinian life and health, they do

not meet the threshold required by this provision of intent to cause the physical

destruction of the Palestinian people.

Instead, living conditions imposed are calculated to cause the displacement of the

Palestinian in whole or in part from Israeli jurisdiction.21

“) Any legislative measures and other measures calculated to prevent a racial group or

groups from participation in the political, social, economic and cultural life of the

country and the deliberate creation of conditions preventing the full development of

such a group or groups, in particular by denying to members of a racial group or groups

basic human rights and freedoms, including the right to work, the right to form

recognised trade unions, the right to education, the right to leave and to return to their

country, the right to a nationality, the right to freedom of movement and residence, the

right to freedom of opinion and expression, and the right to freedom of peaceful

assembly and association”5.34 The entire Israeli legal system establishes an enormous gap between Israeli Jews and

Palestinian Arabs, with legislation typically designed to favour Israeli Jews and keep

Palestinian Arabs in a situation of inferiority. This can be clearly seen through certain

19 Testimony of Emily Schaeffer.

20 Testimony of Mahmound Hassan.

21 Testimony of Marianne Blume.

17

illustrative examples.

Several Israeli laws prevent Palestinian refugees from returning and recovering their

land, thus violating their right to enter and leave the country, freedom of movement

and residency and the right to a nationality. In Israel, the unequal distribution of

resources for education and cultural activities for Palestinians, restrictions on family

reunification for spouses with residence permits on different sides of the Green Line

and the lack of representation in the civil service are violations of rights that feed in to

Israel’s prevention of Palestinian development and participation in political and social

life.22

Palestinians who work in Israel have enormous difficulties in joining Israeli trade

unions or forming their own trade unions in Israel.23 Further rights violations

preventing Palestinian development and political participation include privileges

afforded to Jews in the sphere and land ownership, house demolitions and building

restrictions; as well as pervasive restrictions on the freedom of opinion and expression

through the closure of organisations, prohibition on public gatherings and

demonstrations and media censorship by the Israeli authorities.24

5.35 In summary, Palestinians are subjected to systematic human rights violations that

preclude their development and prevent the Palestinians as a group from participating

in political, economic, social and cultural life. Palestinian refugees who remain

displaced are also victims of apartheid by virtue of the ongoing denial of their right to

return to their homes, as well as by laws that remove their property and citizenship

rights. Policies of forced population transfer remain widespread, particularly in the

Occupied Palestinian Territory. Civil and political rights of Palestinians including

rights to movement, residence, freedom of expression and association are severely

curtailed. Palestinian socio-economic rights are also adversely affected by

discriminatory Israeli policies in the spheres of education, health and housing.

“) Any measures, including legislative measures, designed to divide the population

along racial lines by the creation of separate reserves and ghettos for the members of a

racial group or groups, the prohibition of mixed marriages among members of various

racial groups, the expropriation of landed property belonging to a racial group or

groups or to members thereof”5.36 The Israeli Jewish and Palestinian populations are separated and allocated different

physical spaces, with varying levels and quality of infrastructure, services and access

to resources.

22 Testimonies of Joseph Schechla, Luciana Coconi and Haneen Zoabi.

23 Testimony of Rafeef Ziadah.

24 Testimonies of Jeff Halper, Haneen Zoabi and Joseph Schechla.

18

5.37 In Israel, Palestinians live in crowded spaces, often unable and unauthorised to

refurbish or construct houses, living in villages that are sometimes not even officially

recognised. Israeli Jews occupy larger expanses of land, guaranteed by Jewish national

or government-managed agencies (Jewish National Fund, Israel Land Administration),

which ensure that 93% of the land is reserved for exclusive Jewish use.25

5.38 The landscape of the West Bank is dominated by exclusively Israeli-Jewish

settlements and their associated regime of separate roads, security buffer zones,

checkpoints and the Wall which interrupt the contiguity of the territory, and ensure

that Palestinian communities are confined to isolated enclaves. Israeli settlers enjoy

the protection of the authorities and military, with their own laws and preferential

access to scarce resources such as water, to the detriment of the Palestinian population.

Palestinians are prohibited from entering settlements (unless with special permission,

such as for workers), military zones and ‘natural reserves’, meaning that almost half of

the West Bank territory is closed to its Palestinian population. These settlements are

linked by roads for the exclusive use of Israeli Jews. Palestinian movement restricted

and access to farm land is restricted by a pervasive permit system. Regarding access to

beaches, for example, in Israel’s defence it is commonly stated that Israel does not

segregate such access, in the way that South Africa designated certain beaches for

whites and certain beaches for blacks or non-Europeans. Significantly, the Tribunal

heard evidence describing how Palestinian access even to beaches along the

Palestinian shore of the Dead Sea is prohibited by Israeli regulations.26 The

expropriation of Palestinian property in general has continued since the creation of the

State of Israel, and is underpinned by a series of laws and Military Orders that have

stripped Palestinians of much of their land.27

5.39 Accordingly, the evidence has made it plain to the RToP that since 1948 the Israeli

authorities have pursued concerted policies of colonisation and appropriation of

Palestinian land. Israel has through its laws and practices divided the Israeli Jewish

and Palestinian populations and allocated them different physical spaces, with varying

levels and quality of infrastructure, services and access to resources. The end result is

wholesale territorial fragmentation and a series of separate reserves and enclaves, with

the two groups largely segregated. The Tribunal heard evidence to the effect that such

a policy is formally described in Israel as hafrada, Hebrew for ‘separation’.28

25 Testimonies of Haneen Zoabi and Joseph Schechla.

26 Testimony of Shawan Jabarin.

27 Testimony of Shawan Jabarin, Jeff Halper, Jamal Juma’a, Luciani Coconi and Joseph Schechla.

28 Testimony of Jeff Halper.

19

“) Exploitation of labour of the members of a racial group or groups, in particular by

submitting them to forced labour”5.40 Although Israel has no exploitation system of labour of the Palestinian population, its

policies have restructured the Palestinian workforce by suppressing Palestinian

industry, establishing restrictions on exports and other measures that have increased

the Occupied Palestinian Territory’s dependence on Israel and - now more than ever

before - on international aid. Until the mid-1980s, Israel intensively used Palestinian

labour for work connected to agriculture and construction, with appalling employment

conditions and without any of the benefits enjoyed by Israeli Jewish workers. But

since 1993, the number of Palestinian workers in Israel has plummeted from over

100,000 to just a few hundred. And since the construction of the Wall, there are hardly

any Palestinian workers employed in Israel. Since Hamas won the January 2006

elections in the Gaza Strip, no workers from this area whatsoever have access to

Israel.29

“) Persecution of organisations and persons, by depriving them of fundamental rights

and freedoms, because they oppose apartheid”5.41 Israel persecutes and imposes restrictions on those who oppose the regime of

segregation, who condemn human rights violations or who criticise the actions of the

Israeli military. It also suppresses demonstrations in the Occupied Palestinian

Territory, both by organisations and individuals, against the Wall or the discriminatory

administration of land, water and infrastructure. Such persecution (it must be noted

here that persecution of dissent in this context of the victimisation of those opposing

discriminatory practices is different from the crime of persecution which will be

addressed in the section B, below) manifests itself through the closure of

organisations, travel bans and arbitrary detention of political and human rights

activists and related restrictions on freedom of expression and thought.30

iii. A systematic and institutionalized regime of racial domination

5.42 The inhuman acts listed above do not occur in random or isolated instances. They are

sufficiently widespread, integrated and complementary to be described as systematic.

They are also sufficiently rooted in law, public policy and formal institutions to be described

as institutionalised.

5.43 In the Israeli legal system, preferential status is afforded to Jews over non-Jews

through its laws on citizenship and Jewish nationality, the latter of which has created a

group privileged in most spheres of public life, including residency rights, land owner

ship, urban planning, access to services and social, economic and cultural rights (see

29 Testimony of Rafeef Ziadah.

30 Testimony of Haneen Zoabi, Jamal Juma’a, and Mohammed Khatib.

20

list of legislation and proposed legislation in the annex to these findings). The

Tribunal heard expert evidence detailing the relationship between the State of Israel

and the quasi-state Jewish national institutions (the Jewish Agency, World Zionist Or

ganisation, and Jewish National Fund) that embed and formalise many of the material

privileges granted exclusively to Israeli Jews. Regarding the West Bank, the Tribunal

highlights the institutionalised separation and discrimination revealed by the existence

of two entirely separate legal systems: Palestinians are subject to military law enforced

by military courts that fall far short of international fair trial standards; Israeli Jews

living in illegal settlements are subject to Israeli civil law and a civil court system. The

result is a vastly different procedure and sentence for the same crime, committed in the

same jurisdiction, by members of a different group. An apparatus of administrative

control implemented through pervasive permit systems and bureaucratic restrictions

adversely affects Palestinians throughout the territories under Israeli control. In con

trast to the explicit and readily available South African apartheid legislation, the

Tribunal draws attention to the obscurity and inaccessibility of many laws, military or

ders and regulations that underpin Israel’s institutionalised regime of domination.

A. Finding

5.44 The Tribunal finds that Israel subjects the Palestinian people to an institutionalised

regime of domination amounting to apartheid as defined under international law. This

discriminatory regime manifests in varying intensity and forms against different

categories of Palestinians depending on their location.

5.45 The Palestinians living under colonial military rule in the Occupied Palestinian

Territory are subject to a particularly aggravated form of apartheid. Palestinian

citizens of Israel, while entitled to vote, are not part of the Jewish nation as defined by

Israeli law and are therefore excluded from the benefits of Jewish nationality and

subject to systematic discrimination across the broad spectrum of recognised human

rights. Irrespective of such differences, the Tribunal concludes that Israel’s rule over

the Palestinian people, wherever they reside, collectively amounts to a single

integrated regime of apartheid.

B. Persecution

5.46 The Tribunal will consider Israel’s policies and practices vis-a-vis the Palestinian

people with reference to the persecution as a crime against humanity under the

following headings:

1. The definition and status of persecution under international law

2. Application of the definition of persecution to Israeli policies and

practices vis-a-vis the Palestinian people

21

(1) THE DEFINITION AND STATUS OF PERSECUTION UNDER INTERNATIONAL LAW

5.47 Persecution is a crime against humanity according to the statutes of the international

criminal courts and tribunals31 and the ILC Draft Code of crimes against the peace and

security of mankind (Art. 18, e).

The ICC rules state the most comprehensive definition of the persecution as a crime

against humanity. According to Art. 7 of the ICC Statute:

7.1. For the purpose of this Statute, ‘crime against humanity’ means any of the

following acts when committed as part of a widespread or systematic attack

directed against any civilian population, with knowledge of the attack:

[…]

(h) Persecution against any identifiable group or collectivity on political, racial,

national, ethnic, cultural, religious, gender as defined in paragraph 3, or other

grounds that are universally recognized as impermissible under international

law, in connection with any act referred to in this paragraph or any crime

within the jurisdiction of the Court;

[…]

7.2. (g) ‘Persecution’ means the intentional and severe deprivation of

fundamental rights contrary to international law by reason of the identity of the

group or collectivity;

5.48 According to the Elements of crime, “persecution” contains the following constituent

elements:

1. The perpetrator severely deprived, contrary to international law, one or more

persons of fundamental rights.

2. The perpetrator targeted such person or persons by reason of the identity of a

group or collectivity or targeted the group or collectivity as such.

3. Such targeting was based on political, racial, national, ethnic, cultural, religious,

gender as defined in article 7, paragraph 3, of the Statute, or other grounds that

are universally recognized as impermissible under international law.

4. The conduct was committed in connection with any act referred to in article 7,

paragraph 1, of the Statute or any crime within the jurisdiction of the Court.

5. The conduct was committed as part of a widespread or systematic attack directed

against a civilian population.

6. The perpetrator knew that the conduct was part of or intended the conduct to be

part of a widespread or systematic attack directed against a civilian population.

31 Testimony of Rafaelle Maison, citing Nuremberg IMT Charter, Art. 6, c; Tokyo IMT Charter, Art. 5, c;

ICTY Statute, Art. 5, h; ICTR Statute, Art. 3, h; ICC Statute, Art. 7, 1, h).

22

5.49 In other words, the constituent elements of the persecution include:

· a material element (actus reus): a violation of fundamental rights and freedoms

connected to one of the crimes provided for in Art. 7(1) of the ICC Statute; the

material element is not limited to violence directed against the victim’s body, it

also includes damage to property32;

· a general mental element (mens rea or dolus generalis): the perpetrator has

intent to engage in a conduct which is in connection with a violation of

fundamental rights and freedoms;

· a specific mental element (dolus specialis): the conduct is directed against a

group on political, racial, national, ethnic, cultural, religious or gender grounds;

· a contextual element: the conduct is committed as part of a widespread or

systematic attack directed against a civilian population; the word “attack” is

not limited to a classic military action committed in the context of an armed

conflict; it also includes multiple violations of human rights directed against a

civilian population.33

(2) APPLICATION OF THE DEFINITION OF PERSECUTION TO ISRAELI POLICIES AND PRACTICES VIS-À-

VIS THE PALESTINIAN PEOPLE

5.50 First, the RToP notes that much of the evidence it heard that related to the question of

apartheid was also clearly relevant to the separate crime against humanity of

persecution, which can be considered in relation to Israeli practices under the principle

of cumulative charges.

i. The Siege of the Gaza Strip and Operation Cast Lead

5.51 During the Barcelona session, the RToP concluded that Israel was in violation of

international law through maintaining a blockade on the Gaza Strip in breach of the

provisions of the Fourth Geneva Convention of 12 August 1949 (art. 33), which

prohibits collective punishment (˜˜ A, 19.9). It further concluded that Israel also

violated international law by inflicting extensive and serious damage, especially on

persons and civilian property, and by using prohibited methods of combat during

operation “Cast Lead” in Gaza (December 2008 –January 2009) (§§ A, 19.10).

5.52 At the London session, the RToP noted that the violations of international law by

Israel in which corporations were particularly closely involved included the violations

32 See a.o., U.S. Mil.Trib., 11-13 Apr. 1949, "Ministries Trial", in Trials of War Criminals before the

Nuremberg Military "Tribunals under Control Council Law n° 10, n° 10, vol. XIV, 1949, p. 678 ; also,

ICTY, Case IT-99-36-T, 1 Sept. 2004, Brdanin, §§ 1029-1049 ; id., Case IT-98-32/1-T, 20 July 2009,

Lukic, § 1008, as cited in the testimony of Rafaelle Maison.

33 ICTY, cases IT-23 and 23/1-T, 22 Febr. 2001, Kunarac et al., §§ 416, 570-578; id., App., 12 June 2002,

§ 86

23

of international humanitarian law committed by Israel during operation “Cast Lead”.

The London session referenced the report of the UN-Fact Finding Mission set up to

examine the violation of international law during that conflict (“the Goldstone

Report”) and took particularly note of the destruction of civilian property “without

military necessity”, which constitutes a war crime. The London session also noted

that the Goldstone report mentioned that possible crimes against humanity were

committed during “Operation Cast Lead” (§§ 5.3.2).

5.53 Under international criminal law, the crime of persecution is a crime against humanity.

As the Goldstone Report observed, “crimes against humanity are crimes that shock the

conscience of humanity” (Goldstone Report, §§ 293, p. 77). In this connection, the

report concluded that “the policy of blockade... amounts to collective punishment

intentionally inflicted by the Government of Israel on the people of the Gaza Strip”

(Goldstone Report, §§ 1878, pp. 404-405). It concluded that Cast Lead “was a

deliberately disproportionate attack designed to punish, humiliate and terrorize a

civilian population, radically diminish its local economic capacity both to work and to

provide for itself, and to force upon it an ever increasing sense of dependency and

vulnerability” (Goldstone Report, §§ 1893, p. 408).

5.54 Regarding the siege of the Gaza Strip, the Goldstone report concluded that the

blockade policies implemented by Israel against the Gaza Strip, subject the local

population to extreme hardship and deprivations that amounted to a violation of

Israel’s obligations as an occupying Power under the Fourth Geneva Convention”

(Goldstone Report, §§ 1931, p. 416). It added, “the conditions resulting from

deliberate actions of the Israeli armed forces and the declared policies of the

Government with regard to the Gaza Strip...cumulatively indicate the intention to

inflict collective punishment on the people of the Gaza Strip. The Mission, therefore,

finds a violation of the provisions of article 33 of the Fourth Geneva Convention”

(Goldstone Report, §§ 1934, p. 416).

5.55 Regarding the crimes of persecution, the ICTY in the Tadićcase, noted that

persecution encompasses a variety of acts, which included those of a physical,

economic or judicial nature, that violate an individual’s right to the equal enjoyment of

his basic rights”.34 In the Kupreskic judgment, the ICTY explained that discriminatory

acts charged as persecution must not be considered in isolation. Rather, persecution

usually forms part of a policy or at least of a patterned practice.35 In the light of the

evidence that the Tribunal heard in Cape Town,36 it concurs with the following view,

which was expressed by the authors of the Goldstone Report:

34 Prosecutor v. Tadić International Criminal Tribunal for the former Yugoslavia, Trial Chamber, case

No. IT-94-1-T, Judgment of 7 May 1997, para. 710.

35 Prosecutor v. Kuprešićet al, case No. IT-95-16-T, Judgment of 14 January 2000, para. 615.

36 Testimonies of Raji Sourani, Mohammed Khatib and Jazi Abu Kaf in particular.

24

“…the series of acts that deprive Palestinians in the Gaza Strip of their means

of subsistence, employment, housing and water, that deny their freedom of

movement and their right to leave and enter their own country, that limit their

rights to access a court of law and an effective remedy, could lead a competent

court to find that the crime of persecution, a crime against humanity, has been

committed” (Goldstone Report, §§ 1936, p. 417).

5.56 In the light of the findings of the Goldstone Report, Israel’s siege of the Gaza Strip, its

military operations during “Cast Lead”, and the evidence presented before it, the

Tribunal concludes that Israel has committed the crime of persecution.

ii. Restrictions on Movement (including the Wall) and Access to Resources in West Bank

as a form of Persecution

5.57 During the London session, the RToP drew attention to the illegal construction of the

Israeli wall in Palestinian territory, a project whose illegality had already been

ascertained by the International Court of Justice in its Advisory Opinion of 2004

(London findings, ˜˜ 5.4C.1 et seq.).

What the Court found to be illegal was not just the Wall itself, but its whole

“associated regime” of land appropriation and restrictions on movement and access to

natural resources. The UN Committee on the Elimination of Racial Discrimination has

asserted that such restrictions are part of a policy to target the Palestinians as a group:

“The Committee is deeply concerned that the severe restrictions on the

freedom of movement in the OPT, targeting a particular national or ethnic

group, especially through the wall, checkpoints, restricted roads and permit

system, have created hardship and have had a highly detrimental impact on the

enjoyment of human rights by Palestinians, in particular their rights to freedom

of movement, family life, work, education and health”37

5.58 According to the ICJ, the construction of the Wall has led to violations of diverse

human rights of the Palestinian population:

· by contributing to “the departure of Palestinian populations from certain areas”38

and by altering the demographic composition of the occupied territory,39 the

construction of the wall violates the right of self-determination of the Palestinian

37 Concluding Observations: Israel, CERD/C/ISR/CO/13, 14th June 2007, § 34, cited in the testimony of

Luciana Coconi.

38 ICJ, Wall, Opinion, Reports 2004, p. 184, § 122.

39 Ibid.

25

people;40

· by cutting off “Palestinians between the Wall and Green Line […] from their land

and workplaces, schools, health clinics and other social services”, and by

effectively annexing “most of the western aquifer system (which provides 51 per

cent of the West Bank's water resources)”,41 the construction of the wall impedes

the exercise by the Palestinians concerned of diverse human rights, namely:

“liberty of movement” (International Covenant on Civil and Political Rights,

Art. 12, § 1), and “the right to work, to health, to education and to an adequate

standard of living as proclaimed in the International Covenant on Economic,

Social and Cultural Rights and in the United Nations Convention on the Rights of

the Child”.42

5.59 By way of example of the pervasive effect of the Wall’s construction, the Tribunal

notes evidence presented that “after May 2006, the Wall cut off 75,000 people of Abu

Dis and other Palestinian villages near Jerusalem and left them unable to reach the city

where they worked”.43

5.60 On the related issue of access to natural resources, the UN Human Rights Committee

has asserted its concern over the discriminatory effect of Israeli policy on the

Palestinian population:

“The Committee is concerned at water shortages disproportionately affecting

the Palestinian population of the West Bank, due to prevention of construction

and maintenance of water and sanitation infrastructure, as well as the prohibition

of construction of wells. The Committee is further concerned at allegations

of pollution by sewage water of Palestinian land, including from settlements.”

44

Here the Tribunal notes that the route of the Wall is almost identical to the “red line”

drawn in 1977 by former Israeli water commissioner Menachem Cator, pursuant to a

request from the Israeli government at the time to delineate the areas of the West Bank

from which Israel could withdraw without having to relinquish its control over key

water sources used to supply Israel and the settlements.45

40 Ibid.

41 Ibid, p. 191, § 133.

42 Ibid, p. 191, § 134.

43 Testimony of Rafeef Ziadah on behalf of the Palestinian Trade Union Coalition for Boycotts, Divestments

and Sanctions (PTUC-BDS).

44 Concluding observations of the Human Rights Committee: Israel, CCPR/C/ISR/CO/3, 29 July 2010, § 18,

quoted by witness Luciana Coconi.

45 Human Sciences Research Council, Occupation, Colonialism, Apartheid: A re-assessment of Israel’

practices in the occupied Palestinian territories under international law (Cape Town, 2009), 145, citing

David Arsenault and Jamie Green, ‘The Effects of the Separation Barrier on the Viability of a Future

Palestinian State,’ in Israel/Palestine Centre for Research and Information, Second Israeli-Palestine

International Conference on Water for Life in the Middle East (Atalya, Turkey, 10-14 October 2004).

26

iii. Persecution of Palestinian Citizens of Israel

5.61 The RToP observes the following facts (and refers to the Annex setting out relevant

Israeli legislation and proposed legislation):

· the 2007 Israeli law relating to Citizenship and Entry to Israel “prevents family

unification between Palestinian citizens in Israel and Palestinians in the

occupied territories”;46 the same law prevents an Arab citizen of Israel who

marries an Arab citizen of an “enemy State”, i.e., from Iran, Iraq, Syria or

Lebanon, from living in Israel;47 these prohibitions violate the right to respect

for private life combined with the prohibition of “distinction of any kind such

as […] national or social origin […]” (1966 International Covenant on Civil

and Political Rights, Art. 2, § 1, and 17);

· According to the 28 March 2011 Israeli law relating to Citizenship, courts can

“revoke the citizenship of persons convicted of treason, espionage, assisting

the enemy in time of war, and acts of terrorism as defined under the

Prohibition on Terrorist Financing Law (2005), if asked to do so by the

Ministry of the Interior, as part of a criminal sentence delivered”.48

If this provision applies to Israeli Jewish citizens as well as to Palestinian

citizens, the provision does not seem to be arbitrary; if this is not the case and

if the law only applies to Palestinian citizens, deprivation of nationality would

be discriminatory and arbitrary (cfr. Committee on the Elimination of Racial

Discrimination, Final Observations, Lituania, CERD/C/LTU/CO/3, 11 April

2006, § 23).

· The Land Acquisition Law (1953) and the Absentees’ Property Law (1950)

allows Israel to confiscate Palestinian-owned land in Israel 49 without any

compensation; if the Palestinian owners have been obliged to leave their land

but if they did not abandon their property title, the confiscation of their land

without compensation is arbitrary and violates their property rights (UDHR,

Art. 17); even if the confiscation of the land is done to achieve public purposes,

a fair compensation is required (cfr. 1st Protocol to the ECHR, Art. 1, which

expresses international custom).

· Various Israeli programs deprive Palestinians of their land and allocate land or

parts of the land to Israel or to Israeli settlers; a compensation is granted but is

not fair since the Arab Palestinians would receive 180,000 - 200,000 dunams

while 600,000 dunams have been taken;50 this is another violation of individual

46 Testimony of Haneen Zoabi

47 Ibid.

48 Ibid.

49 Ibid.

50 Ibid.

27

property rights or customary collective rights as stated above.

· In many respects, the Palestinians citizens are not treated in the same way as

Israeli citizens: their forced evacuation from historical Palestinian sites such as

in Jaffa and Acre; the building of cities for Israeli citizens only, not for

Palestinians; the water supply for Palestinian agriculture is only 2.5% of the

entire water that is supplied to that sector in Israel; “judaization” of the public

space by using exclusively Hebrew names and ignoring Arabic ones; the

silence of education about Palestinian history and its focus on Jewish history;

the building of 1000 new Jewish settlements and cities since 1948; compared to

just 7 for Palestinians in the Negev; the facilities awarded to discharged Israeli

soldiers (Palestinians generally do not serve in the Israeli army) for access to

the higher education system (1994 law).51

· In the Negev desert, 90,000 Palestinians live in “unrecognised” villages:

although these villages existed before 1948, they

“are not allowed to connect to the water or the electricity grids. These

villages do not have access to medical or educational services in their

localities, although each of these localities has a population of 700-

6000 people; far more than many of the Jewish localities which receive

all services”.52

Indeed, the Tribunal heard evidence of a concerted campaign of forcible

evacuation and demolition of unrecognised Bedouin villages in the Negev

region of southern Israel.

These institutionalized and factual discriminations between Israeli citizens violate

several provisions of the International Convention on the Elimination of all forms of

Racial Discrimination (Art. 2, § 1, a, and Art. 5, d, iii, iv, v, combined with Art. 1, §

1).

Finding

The material elements of persecution

5.62 The Tribunal finds that the material elements of “persecution” are present in this case:

•the living conditions imposed on Palestinians deprive them, “contrary to

international law … of fundamental rights” (Elements of Crimes, Art. 7, § 1 (h), persecution,

§ 1), including their right of self-determination and numerous civil and socio-economic rights

(London findings, § 5.4C.5; ICJ advisory opinion)53

•the Palestinians in Gaza and in territories that are encircled or crossed by the

Wall and its associated regime in the West Bank are a group that has been “targeted” as such

51 Ibid.

52 Testimony of witness Jazzi Abu Kaf.

53 ICJ, Wall, Opinion, Reports 2004, pp. 189-192, §§ 133 and 134.

28

(Elements of Crimes, Art. 7, § 1 (h), persecution, § 2);

•the practical consequences of the imposition of such conditions is the targeting

of Palestinians on grounds that are political and national [Israel’s conflict with the

Palestinians]” (ibid., § 3);

•the acts are “committed in connection with […] any crime within the

jurisdiction of the Court” (ibid, § 4); in casu, the acts are connected with the war crime

consisting of the establishment of Israeli settlements in the Occupied Palestinian Territory

(London findings, § 5.3.2);

•the acts form “part of a widespread or systematic attack directed against a

civilian population” (Elements of Crimes, Art. 7, § 1 (h), persecution, § 5), in casu the

Palestinian population.

The mental element of persecution

5.63 The mental element of persecution consists in knowledge of the “attack” directed

against the victims of the crime. The construction of the Wall and it associated regime

of restrictions on movement and access to natural resources by the Israeli authorities

forms “part of a widespread or systematic attack directed against” the Palestinian

population (Elements of Crimes, Art. 7, § 1 (h), persecution, § 6), knowingly

implemented by the architects of Israel’s policies in respect of siege of Gaza and the

implementation of large scale military operations, as well as the living conditions

imposed in the West Bank.

The contextual element of persecution

5.64 The Tribunal notes that, according to the Elements of Crimes, the “attack” referred to

in Art. 7 “need not constitute a military attack”. Operation Cast Lead clearly

constituted a military attack. Even if the siege of Gaza in itself and the conditions

imposed in the West Bank by the Wall and its associated regime cannot be

characterised as military offensives involving overt hostilities and the use of force,

they are nonetheless a military character. It is not necessary for the Tribunal to engage

in a semantic discussion of the meaning of the term “attack”; it is sufficient to note

that the Elements of Crimes endow the term with a broader import than its customary

and ordinary meaning, since they do not limit its scope to a classical military attack. It

follows that the conditions imposed in the Occupied Palestinian Territory are

analogous to “a widespread or systematic attack” directed against the Palestinian

population. The contextual criterion of persecution as a crime against humanity as a

crime against humanity is thus fulfilled. The human rights violations against

Palestinian citizens of Israel are also a form of mistreatment of a civilian population;

this mistreatment amounts to a permanent attack against the Palestinian population

according to the meaning of the word “attack” provided by Art. 7, § 1, of the ICC

Statute and the jurisprudence applicable to the concept. This population is mistreated

because of its national origin.

29

5.65 The Tribunal considers, in the light of the above, that certain Israeli practices are

analogous to persecution as a “crime against humanity” within the meaning of Article

7(1)(h) of the Rome Statute of the International Criminal Court, to which Israel is not

a party but whose customary status has already been noted by the RToP (London

findings, §§ 5.3.2, 6.9). The facts in question have been found to combine the material

elements, the mental element and the contextual criterion of the crime of persecution.

As noted, persecution involves the intentional and severe deprivation of fundamental

rights of the members of an identifiable group in the context of a widespread and

systematic attack against a civilian population. The Tribunal concludes that the

evidence presented to it supports a finding of persecution in relation to the following

acts:

•the siege and blockade of the Gaza Strip as a form of collective punishment of the

civilian population;

•the targeting of civilians during large-scale military operations;

•the destruction of civilian homes not justified by military necessity;

•the adverse impact on the civilian population effected by the Wall and its associated

regime in the West Bank, including East Jerusalem;

•the concerted campaign of forcible evacuation and demolition of unrecognised

Bedouin villages in the Negev region of southern Israel.

VI. LEGAL CONSEQUENCES

A. Legal consequences for Israel

6.1 Apartheid and persecution are acts attributable to Israel and entail its international

legal responsibility. (2001 Draft Articles of the International Law Commission [ILC]

on Responsibility of States for Internationally Wrongful Acts, Art. 1-2). Israel must

cease its apartheid acts and its policies of persecution and offer appropriate assurances

and guarantees of non-repetition (ibid., Art. 30).

6.2 In addition, Israel must make full reparation for the injuries caused by its

internationally wrongful acts, with regard to any damage, whether material or moral

(ibid., Art. 31). With regard to reparation, Israel must compensate the Palestinians for

the damage it has caused, with compensation to cover any financially assessable

damage for loss of life, property, and loss of profits insofar as this can be established.54

The reparation obliges Israel “to compensate for the damage caused thereby” and “the

compensation shall cover any financially assessable damage including loss of profits

insofar as it is established” (ibid., Art. 36).

54 Testimony of Dr. Francois Dubuisson.

30

B. Duties of third states under public international law

6.3 States and international organisations also have international responsibilities. Indeed,

the conclusion that Israel’s discriminatory and segregationist policies in the occupied

territories as well as in Israel collectively amount to a regime of apartheid has serious

consequences for states and international organisations under international law.

Apartheid and persecution, as defined in the foregoing, are internationally wrongful

acts and international law crimes which trigger specific responsibilities. Third states

have a duty to cooperate to bring Israel’s apartheid acts and policies of persecution to

an end, including by not rendering aid or assistance to Israel and not recognising the

illegal situation arising from its acts. They must bring to an end Israel’s infringements

of international criminal law through the prosecution of international crimes, including

the crimes of apartheid and persecution.

6.4 The Tribunal will address responsibility for apartheid and persecution, on the one

hand, as internationally wrongful acts, and on the other hand, as international law

crimes.

6.5 First, states and international organisations have an obligation to ensure that Israel

respects international law. Second, states and international organisations have an

obligation to bring to an end Israel’s apartheid regime because apartheid in and of

itself amounts to a systematic breach of a peremptory norm of international law.

Third, states and international organizations are required to cooperate to bring to an

end Israel’s infringements of international criminal law. In this connection they have

an obligation to cooperate with each other in the judicial sphere regarding the

prosecution of international crimes.

6.6 With respect to international criminal law, the Tribunal would observe that the 1973

Apartheid Convention requires states “[t]o adopt any legislative or other measures

necessary to suppress as well as to prevent any encouragement of the crime of

apartheid and similar segregationist policies or their manifestations”.55 Because we say

more about the question of universal jurisdiction below, we shall next turn to the

matter of state responsibility.

55 Article 4, Apartheid Convention.

31

Duty of cooperation

6.7 Under Article 41 of the International Law Commission’s Articles on State

Responsibility third states are required to cooperate to bring to an end through lawful

means any serious breach of an obligation arising under a peremptory norm of general

international law. As the International Court of Justice explained in the Barcelona

Traction case, certain peremptory norms are derived “from the principles and rules

concerning the basic rights of the human person, including protection from slavery

and racial discrimination”.56 In this connection, the Tribunal would observe that

apartheid is a peculiarly egregious form of racial discrimination and has been

universally condemned as such. Hence, the prohibition of apartheid is considered a

peremptory norm of general international law.57

6.8 Article 41 of the Articles on State Responsibility further stipulate that no state shall

recognise as lawful a situation created by a serious breach of a peremptory norm of

general international law, nor render aid or assistance in maintaining that situation.

Non-recognition and non-assistance

6.9 An obligation of non-recognition can arise from the denial by a state of the right to

self-determination of peoples. As the commentary to the ILC’s Articles on State

Responsibility explains, the obligation of collective non-recognition would apply to

the attempted acquisition of sovereignty over territory through a denial of the right to

self-determination of peoples.58 The Tribunal observes that the ICJ has already found

Israel to be in breach of the Palestinian people’s right to self-determination, which is a

breach of a peremptory norm of international law.59 In addition, no state which enters

into a treaty relationship with Israel that is connected to its apartheid regime may

expect the UN or its member states to recognise the validity or the effects of such a

relationship.60 During the struggle against apartheid in South Africa the international

community repeatedly called on states not to aid or assist the apartheid regime. The

Tribunal recalls that the Security Council and General Assembly called on all states

not to recognise the legality of the Bantu Homelands established by South Africa

56 See Barcelona Traction, Light and Power Company, Limited, Judgment, I.C.J. Reports 1970, p. 3 at p. 32,

para. 34.

57 James Crawford, The International Law Commission’ Articles on State Responsibility: Introduction,

Text, and Commentaries (Cambridge: Cambridge University Press, 2002), p. 246.

58 Crawford, The International Law Commission’ Articles on State Responsibility, ibid, p. 250.

59 See Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory

Opinion, I.C.J. Reports 2004, p. 136, at p. 199, para. 155.

60 Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa)

notwithstanding Security Council Resolution 276 (1970), I.C.J. Reports 1971, p. 16, at p. 56, para. 126.

32

within South Africa and within Namibia.61

6.10 Given the character and the importance of the rights and obligations involved, the

Tribunal is of the view that all states are under an obligation not to recognize the

illegal situation resulting from the establishment of an apartheid regime in Israel and

the occupied territories. They are also under an obligation not to render aid or

assistance in maintaining the situation created by such a regime. In relation to South

Africa’s illegal presence in Namibia, the International Court of Justice ruled that states

had a duty “to abstain from entering into economic and other forms of relationship or

dealings with South Africa on behalf of or concerning Namibia which may entrench

its authority over the territory”.62 This included a duty not to render aid or assistance

to South Africa whether it was economic, industrial or financial assistance, in the form

of gifts, loans, credit, advances or guarantees, or in any other form. This prohibition is

not confined to states. It also extends to international organisations in which states

have voting rights.63

6.11 It is for all states, while respecting the United Nations Charter and international law, to

see to it that any impediment, resulting from the maintenance of a regime of apartheid,

to the exercise by the Palestinian people of its right to self-determination, is brought to

an end. Whilst the Tribunal is of the view that the United Nations, and especially the

General Assembly and the Security Council, should consider what further action is

required to bring to an end the illegal situation resulting from Israel’s apartheid

regime, it recalls that in the struggle against apartheid in South Africa, international

civil society routinely resorted to boycotts, divestment, and sanctions. It is for the

international community to decide what modalities are most practical to ensure

Israel’s compliance with international law. But the Tribunal would reiterate the

position expressed by the ILC and reiterated by the German Constitutional Court that

a serious violation of a peremptory norm, “obliges the community of States to

cooperate in order to terminate the violation using the means of international law”.64

Should states fail to bring Israel into compliance with international law, they may find

themselves complicit with regards to Israel’s violations, with their responsibility

engaged.

61 See SC Res. 402, 22 December 1976 and SC Res. 407, 25 May 1977. See also, See John Dugard,

Recognition and the United Nations (Cambridge: Grotius Publications, 1987), pp. 98-108.

62 See Namibia advisory opinion, ICJ Rep, 1971, 55-56, para. 124.

63 Namibia advisory opinion, ibid., separate opinion of Judge Ammoun, 67 at 94-95, para. 14.7.

64 See Article 41 of the Draft Articles on State Responsibility, 2001 Report of the Secretary-General,

Responsibility of States for internationally wrongful acts: comments and information received from

Governments, UN Doc.A/62/63 (9 March 2007), comments by Germany, 15-16, para.36: for an account of this

case, see 15-17, paras.33-38.

33

C. Duties of states regarding universal jurisdiction and international crimes

6.12 Apartheid and persecution are not only internationally wrongful acts: they are also

international crimes which entail individual criminal responsibility of the perpetrators

(1973 Apartheid Convention, Art. 4; ICC Statute, Art. 7, ˜ 1, h, and Art. 25, as

expressions of international custom) and a universal obligation either to prosecute the

presumed perpetrators or to extradite them to any State that claims them for

prosecution –judicare vel dedere –(1973 Apartheid Convention, Art. III-V and XI;

ICC Statute, preamble, para. 4-6).

6.13 The criminal responsibility of the individual perpetrators does not exclude

international responsibility of Israel. As stated in the ICC Statute:

“No provision in this Statute relating to individual criminal responsibility shall

affect the responsibility of States under international law.” (Art. 25, § 4)

The attribution to a State of an international law crime has been enshrined by the ICJ

in the 2007 Genocide Convention Application judgement (Bosnia and Herzegovina v/

Yugoslavia) when the ICJ stated that

“State responsibility can arise under the Convention for genocide and complicity,

without an individual being convicted of the crime or an associated one.” (ICJ

Rep.2007, p. 120, § 182).

6.14 This reasoning is equally applicable to apartheid and persecution as crimes against

humanity.

VII. ACTION REQUIRED AND RECOMMENDED

7.1 The Tribunal has a responsibility to go beyond its legal findings and its formal

description of the legal consequences for Israel and third parties relating to apartheid

and persecution, by resolutely urging all relevant parties to act in accordance with their

legal obligations. While in some cases, this will involve political actions, these are in

many cases required be resolutely urges all relevant parties to act in accordance with

their legal obligations because of the legal consequences flowing from the findings of

apartheid and persecution.

7.2 Accordingly, the Tribunal urges:

7.2.1 The state of Israel to immediately dismantle its system of apartheid over the

Palestinian people, to rescind all discriminatory laws and practices, not to pass any

further discriminatory legislation, and to cease forthwith acts of persecution against

34

Palestinians;

7.2.2 All states to cooperate to bring to an end the illegal situation arising from Israel’s

practices of apartheid and persecution. In light of the obligation not to render aid or

assistance, all states must consider appropriate measures to exert sufficient pressure on

Israel, including the imposition of sanctions, the severing of diplomatic relations

collectively through international organisations, or in the absence of consensus,

individually by breaking bilateral relations with Israel;

7.2.3 The Prosecutor of the International Criminal Court to accept jurisdiction as

requested by the Palestinian authorities in January 2009, and to initiate an

investigation ‘as expeditiously as possible’ as called for by the ‘Goldstone Report’,

into international crimes committed in Palestinian territory since 1 July 2002,

including crimes of apartheid and persecution;

7.2.4 Palestine to accede to the Rome Statute of the International Criminal Court;

7.2.5 Global civil society (including all groups and individuals working diligently inside

Israel and the Occupied Palestinian Territory to oppose the system of racial

domination that exists therein) to replicate the spirit of solidarity that contributed to

the end of apartheid in South Africa, including by making national parliaments aware

of the findings of this Tribunal and supporting the campaign for Boycott, Divestment

and Sanctions (BDS);

7.2.6 The UN General Assembly to reconstitute the UN Special Committee against

Apartheid, and to convene a special session to consider the question of apartheid

against the Palestinian people. In this connection the Committee should compile a list

of individuals, organisations, banks, companies, corporations, charities, and any other

private or public bodies which assist Israel’s apartheid regime with a view to taking

appropriate measures;

7.2.7 The UN General Assembly to request an advisory opinion from the International

Court of Justice as called for by the current and former UN Special Rapporteurs for

human rights in the Occupied Palestinian Territory, as well as by the Human Sciences

Research Council of South Africa, to examine the nature of Israel’s prolonged

occupation and apartheid;

7.2.8 The UN Committee on the Elimination of Racial Discrimination to address the

issue of apartheid in its forthcoming review of Israel in February 2012;

7.2.9 The government of South Africa, as the host country for the third session of the

Russell Tribunal on Palestine, to ensure that no reprisals of any sort are taken by the

state of Israel against the witnesses that testified before the Tribunal.

35

7.3 The Tribunal welcomes the decision of the United Nations Education, Scientific and

Cultural Organisation (UNESCO) to admit Palestine as a member. It deplores the

punitive action taken by the United States towards the organisation, and urges all

states and international organisations to actively support the right of the Palestinian

people to self-determination. The Tribunal welcomes the solidarity and support of

those countries that have consistently and steadfastly supported Palestinian human

rights, and urges them to continue with the struggle for justice.

VIII. CONTINUATION OF THE PROCEEDINGS

8.1 These conclusions close the third session of the Russell Tribunal on Palestine in Cape

Town. They are the result of a prima facie assessment of the facts brought to its

knowledge and are without prejudice to the final verdict that the Tribunal will deliver

at its closing session.

8.2 The Next session of the RToP will take place in New York, USA, towards the end of

2012.

36

ANNEX65

ANNOTATED LIST OF ISRAELI LEGISLATION & PROPOSED LEGISLATION

In 1948, Israel was established as a Jewish state. The definition of Israel as “the Jewish State”

or “the State of the Jewish People” makes inequality a practical, political and ideological

reality for Palestinian citizens of Israel, who are marginalized and discriminated against by

the state on the basis of their national belonging and religious affiliation as non-Jews.

The main laws that achieve this systematic discrimination is that Palestinian citizens of Israel

are afforded differential and unequal treatment under Israeli law in the field of citizenship

rights. The most important immigration and nationality laws are:

1. Law of Return (1950)

2. Citizenship Law (1952)

3. Citizenship and Entry to Israel Law (2007)66

These laws openly privilege Jews and Jewish immigration.67

Israeli law also confers special quasi-governmental standing on the World Zionist

Organization, the Jewish Agency, the Jewish National Fund (JNF) and other bodies, which by

their own charters cater only to Jews.

4. Covenant between the Government of Israel and the Zionist Executive (1952)

5. World Zionist Organization-Jewish Agency (Status) Law (1952)

6. Keren Kayemeth le-Israel Law (1953)

7. Covenant with Zionist Executive (1954, 1971)

Note also the criminalisation of acts in any part of the world against Jewish agencies:

8. Penal Law of Israel (626/1996)68

65 This annex cross refers to 5.43 & 5.61 above

66 See para 5.61 for a summary of this law.

67 Also note The Law to Revoke Citizenship for Acts Defined as Espionage and Terrorism (2011), enacted on 28

March 2011, which allows courts to revoke the citizenship of persons convicted of treason, espionage, assisting

the enemy in time of war, and acts of terrorism as defined under the Prohibition on Terrorist Financing Law

(2005), if asked to do so by the Ministry of the Interior, as part of a criminal sentence delivered. Citizenship can

only be revoked if the defendant has dual citizenship or else resides outside Israel (in which case the law creates

an assumption that such a person has dual citizenship). If a person does not have dual citizenship or reside

abroad, then he or she will be granted residency status in Israel instead of citizenship, a downgrading that

severely restricts the right to political participation. The law was proposed following the arrest and indictment of

Arab civil society leader Ameer Makhoul on charges of espionage.

68 Chapter Three: Incidence in Respect of Foreign Offences –13. (a) Israeli penal law shall apply to foreign offences against:

(1) the security, foreign relations or secrets of the State; (2) the governmental system of the State; (3)

the proper functioning of the authorities of the State; (4) the property and economy of the State and its transport

or communication links with other countries; (5) the property, rights and proper functioning of any association or

body specified in, or designated under, the provisions of subsection (c).

37

The following laws give recognition to Jewish educational, religious, and cultural practices

and institutions, and define their aims and objectives strictly in Jewish terms, while no similar

laws providing similar legal recognition to the religious and cultural rights of the Palestinian

minority in Israel have been legislated.

9. The Chief Rabbinate of Israel Law (1980)

10. The Flag and Emblem Law (1949)

11. The State Education Law (1953) and its 2000 amendment

Land laws

12. Absentee Property Law (1950)

13. The Land Acquisition Law (1953)

14. Basic Law: Israel Lands [The People’s Lands] (1960)

15. Agricultural Settlement Law (1967)

16. Basic Law: The Knesset (1958), Amendment 9 (1985)69

17. The Israel Land Administration (ILA) Law (2009)70

18. Amendment (2010) to The Land (Acquisition for Public Purposes) Ordinance (1943)71

19. The Admissions Committees Law (2011)72

(c) "Association or body," for the purposes of subsection (a)(6) means:

(1) the World Zionist Organization; (2) the Jewish Agency for Eretz-Israel; (3) the Keren Kayemet Le-

Israel; (4) the Keren Ha-Yesod - United Israel Appeal; (5) an inspected body, within the meaning of the State

Comptroller Law (Consolidated Version), 5718–958.

69 This requires every political party to desist from denying the existence of Israel as ‘a Jewish and

democratic state’

70 The law, enacted by the Knesset on 3 August 2009, institutes broad land privatization. Much of the land

owned by the Palestinian refugees and internally-displaced persons (currently held by the state as “absentees’

property”), some of the lands of destroyed and evacuated Arab villages, and land otherwise confiscated from

Palestinian citizens, can be sold off to private investors under the law and placed beyond future restitution

claims. This land, which totals an estimated 800,000 dunams, includes refugees’ properties now located in the

mixed Arab-Jewish cities and land that has been developed or that is zoned for development in master plans. It

also grants decisive weight to representatives of the Jewish National Fund (JNF) (6 out of 13 members) in a new

Land Authority Council, to replace the Israel Land Administration (ILA), which manages 93% of the land in

Israel.

71This British Mandate-era law allows the Finance Minster to confiscate land for “public purposes”. The state

has used this law extensively, in conjunction with other laws –as above - to confiscate Palestinian‐owned land in

Israel. The new amendment, which passed on 10 February 2010, confirms state ownership of land confiscated

under this law, even where it has not been used to serve the original confiscation purpose. It allows the state not

to use the confiscated land for the original confiscation purpose for 17 years, and prevents landowners from

demanding the return of confiscated land not used for the original confiscation purpose if it has been transferred

to a third party, or if more than 25 years have elapsed since the confiscation. The amendment expands the

Finance Minister’s authority to confiscate land for “public purposes,” which under the law includes the

establishment and development of towns, and allows the Minister to declare new purposes. The new law was

designed to prevent Arab citizens of Israel from submitting lawsuits to reclaim confiscated land: over 25 years

have passed since the confiscation of the vast majority of Palestinian land, and large tracts have been transferred

to third parties, including Zionist institutions like the JNF.

72 The Admissions Committees Law legalizes “admission committees” that operate in nearly 700 small

38

20. The Israel Lands Law (Amendment No. 3) (2011)73

Economic, Social and Cultural Rights

21. The Economic Efficiency Law (Legislative Amendments for Implementing the

Economic Plan

22. Absorption of Discharged Soldiers Law (1994) (Amendment No. 12) (2010)74

23. [2008 amendment to the same law] - anchors the use of the military service criterion

in determining eligibility for student dormitories in all higher education institutions

into law, and grants broad discretion to these institutions to grant additional economic

benefits to discharged soldiers, regardless of the benefits provided to them under any

other law.

24. Law (2011) to Amend to the Budgets Foundations Law, Amendment No. 40 (The

“Nakba Law”)

Other legislation

25. The Regional Councils Law (Date of General Elections) (1994) Special Amendment

No. 6 (2009)

26. Duty of Disclosure for Recipients of Support from a Foreign Political Entity Law

(2011) (“NGO Foreign Government Funding Law”)

community towns built on state land in the Naqab and Galilee. The law gives admission committees, bodies that select

applicants for housing units and plots of land, full discretion to accept or reject individuals from living in these towns. The

committees include a representative from the Jewish Agency or the World Zionist Organization, quasi-governmental entities,

and are used in part to filter out Arab applicants, in addition to other marginalized groups. While one of the law’s provisions

states a duty to respect the right to equality and prevent discrimination, the law allow these committees to reject applicants

deemed “unsuitable to the social life of the community… or the social and cultural fabric of the town,” thereby legitimizing

the exclusion of entire groups. The ILA instituted arbitrary and exclusionary criterion of “social suitability” in order to

bypass the landmark Supreme Court decision in Ka’adan from 2000, in which the court ruled that the state’s use of the

Jewish Agency to exclude Arabs from state land constituted discrimination on the basis of nationality. The law also

authorizes admissions committees to adopt criteria determined by individual community towns themselves based on their

“special characteristics”, including those community towns that have defined themselves as having a “Zionist vision”.

73 The law, passed in March 2011, prevents any person or party (public or private) from selling land or renting

property for a period of over five years or from bequeathing or transferring private ownership rights in Israel to

“foreigners”. Under the law, foreigners are any persons who are not residents or citizens of Israel, or Jews, who have

the automatic right to immigrate to Israel under the Law of Return (1950). Under the law Palestinian refugees –the

original owners of the land, who are entitled to the return of and to their properties under international law –become

“foreigners”, along with all other persons who do not hold Israeli citizenship or residency, with the exception of Jewish

people.

74 Enacted in July 2010, any registered university or college student who has completed his or her military service and

is a resident of a designated “National Priority Area” such as the Naqab, the Galilee or the illegal Jewish settlements in

the West Bank will be granted a “compensation package” including: full tuition for the first year of academic

education; a year of free preparatory academic education; and additional benefits in areas like student housing. This

benefits package goes far beyond and adds to the already extensive educational benefits package that is enjoyed by

discharged soldiers in Israel. In general, Palestinian Arab citizens of Israel are exempt from military service and thus

they are excluded from receiving these state allocated benefits ‐ and discriminated against on the basis of their national

belonging. A number of other bills that condition various benefits on the performance of military/national service are

also pending in the Knesset (see below)

39

BILLS

1. Bill to amend the Citizenship Law (1952) imposing loyalty oath for persons seeking

naturalization in Israel and Israeli citizens seeking first ID cards

A proposed amendment to the Citizenship Law requires all persons seeking to naturalize via

the naturalization process and Israeli citizens applying for their first ID cards (which is

obligatory at the age of 16) to declare a loyalty oath to Israel as a “Jewish, Zionist, and

democratic state, to its symbols and values, and to serve the state in any way demanded,

through military service or alternative service, as defined by law.”

NB: according to numerous other bills introduced in the Knesset, declarations of allegiance to

a Jewish and democratic state could soon be required of all ministers, Knesset members, civil

service employees, etc.

2. Bill (2009) to amend the Basic Law: Human Dignity and Liberty and limit the judicial

review powers of the Supreme Court to rule on matters of citizenship .

This bill was proposed in December 2009 and seeks to limit the judicial review powers of the

Israeli Supreme Court on citizenship issues. It was put forward in the context of Supreme

Court hearings on petitions filed against provisions of the Citizenship and Entry into Israel

Law (Temporary Order) - 2003 (amended 2007) that prohibit entry into Israel by Palestinians

in the OPT and other “enemy states,” as defined by Israel (such as Syria, Lebanon, Iran and

Iraq) for purposes of family unification with Israeli citizens, overwhelmingly Arab citizens of

Israel.

Bills directing benefits to those who serve in the army (which excludes almost all non-Jewish

citizens of Israel):

3. Bill Granting Preference in Civil Service Appointments to Former Soldiers

4. Bill Awarding Preferences in Services to Former Soldiers

Other bills:

5. Bill to Prohibit Imposing a Boycott (2010) (“Ban on BDS Bill”)

6. The Associations (Amutot) Law (Amendment –Exceptions to the Registration and

Activity of an Association) (2010) (“Universal Jurisdiction Bill”)

7. Bill to Protect the Values of the State of Israel (Amendment Legislation) (2009)

(“Jewish and Democratic State Bill”)

8. The new “cinema bill”, if passed, would regulate and condition that any state funds

would be given to film makers only after they have signed a loyalty declaration to

Israel and its institutions as ‘a Jewish state’.