Do Israel’s practices in occupied Palestinian territory, namely the West Bank, East Jerusalem and Gaza, amount to the crimes of colonialism and apartheid under international law?

Is Israel an Apartheid State?

Summary of a legal study by Human Sciences Research Center of South Africa.
Summary written by Frances H. ReMillard.

Rhetoric or Reality?

Do Israel’s practices in occupied Palestinian territory, namely the West Bank, East Jerusalem and Gaza, amount to the crimes of colonialism and apartheid under international law? A summary of a legal study by HSRC of South Africa.

The Human Sciences Research Council of South Africa, in its efforts to eliminate and prevent the kind of suffering the South African and Namibian people suffered under apartheid, commissioned a legal study of the Israel-Palestine situation. “The aim of this project was to scrutinize the situation from the nonpartisan perspective of international law, rather than engage in political discourse and rhetoric.”

This fifteen-month collaborative study set out to examine legally the question:

Do Israel’s practices in occupied Palestinian territory, namely the West Bank, East Jerusalem and Gaza, amount to the crimes of colonialism and apartheid under international law?

The study was comprehensive including discussion of pertinent international law and legal rulings, the legal status and laws governing historic Palestine from Ottoman times to present, Israeli law, discussion and rebuttal of Israel’s various legal arguments as to why international law does not apply, and a very detailed review of Israel’s practices weighed against this legal context and compared to similar practices carried out by the government of South Africa during apartheid.

To fully explore this issue, the evidence offered in the study was very broad including Israel’s practices within the state of Israel proper, Israel’s practices regarding Palestinian refugees, and Israel’s practices in occupied Palestinian territory; however, the legal question asked and conclusions drawn about apartheid were limited to Israel’s practices after 1967 when Israel occupied the West Bank, East Jerusalem, and the Gaza Strip.

Apartheid defined under international law
Apartheid is defined as an institutionalized form of racism in which states enact laws which function as the apparatus to commit inhuman acts 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.

Apartheid regimes rely on three “Pillars of Apartheid” to maintain their domination

• Pillar 1: The state codifies into law a preferred identity, and then establishes adjunct laws that grant preferential legal status and material privileges to the preferred group on the basis of their identity while discriminating against the non-preferred group on the basis of the inferior status afforded them.
• Pillar 2: The state segregates the population into geographic areas based on their identity. The favored identity receives preferential access to land, water, other resources, and to government benefits and services while the non-preferred group is confined to ever shrinking non-contiguous besieged territorial enclaves.
• Pillar 3: The state establishes security laws and policies designed to suppress any opposition to the regime. The system of domination is reinforced through assassinations; administrative detention; torture; cruel, inhumane, or degrading treatment; and arbitrary arrest and imprisonment of the non-preferred group.an advisory opinion on the question of Israel’s practices in occupied Palestinian territory.

Using these criteria, the May 2009 South African study found that “Israel, since 1967, is the belligerent Occupying Power in occupied Palestinian territory, and that its occupation of these territories has become a colonial enterprise which implements a system of apartheid.”

The Israeli Committee Against House Demolitions-USA has summarized the findings of this study to make the results accessible to the public, to help people understand that talk of apartheid is more than just rhetoric, and to provide a tool which concerned citizens can use to help bring an end to Israel’s apartheid regime. Our summary briefly describes only the ‘components of apartheid’ and the Israeli practices used by the study group to reach its conclusions.

Israel’s practices, Apartheid Pillar 1: A preferred identity; separate system privileging Jews

• Israel’s domestic law codifies the Jewish identity as the preferred identity and establishes that collective rights extend to Jews only. All other people lack the right to a national life anywhere in Israel proper or occupied Palestinian territory.
• Israel’s state resources (including land in occupied Palestinian territory which Israel has declared ‘state land’) are specified as being for the exclusive benefit of Jews, administered under the World Zionist Organization, Jewish Agency, and Jewish National Fund. These para-state organizations are authorized agents of the state of Israel; receive funding from the state of Israel; are empowered to manage Israeli state affairs; yet their charters and Israeli Law mandate that they operate in perpetuity for the exclusive benefit of world Jewry.
• Since 1967, Israel supplanted existing laws governing Palestinian territory with two separate sets of law: Israeli domestic law to apply to Jewish settlers and Israeli military law to apply to Palestinians (See Table A for examples of Israel’s military orders governing Palestinians).

Right to Housing and Natural Growth
– After occupying Palestinian territory in 1967, Israel froze the municipal boundaries of Palestinian towns and villages. Because Israel, in general, denies Palestinians the right to build outside municipal boundaries, this law has served as the basis for stemming Palestinian growth, denying Palestinians 90% of needed housing permits, and for destroying thousands of Palestinian homes.

– Since 1967 not one new Palestinian community has been established in East Jerusalem.

Settler Benefits
– Israel encourages Jews from anywhere in the world to move into occupied Palestinian territory by providing automatic citizenship, settlement housing, and financial benefits including permanent exemption from real estate and employers’ taxes; grants to cover costs of moving to settlements; loans for rent, utilities and purchasing apartments (these loans convert to grants after three years residence in the settlement); free education from kindergarten through university; and free technical education. Palestinians are not afforded such benefits.

Freedom of Residence
– Palestinians who procure residency or citizenship in another country immediately lose their right of residency in occupied East Jerusalem. Jews, however, can obtain both residency and citizenship in another country and still retain their right to reside in occupied East Jerusalem.

Freedom to Leave and Return to One’s Country
– Palestinians who either fled or were not in the West Bank, East Jerusalem, or the Gaza Strip at the time of the1948 or 1967 wars have never been allowed to return to their homes or reclaim their property. By contrast, Jews from anywhere in the world may ‘return’ to either Israel proper or occupied Palestinian territory even if neither they nor any of their ancestors were born or had previously lived there.

Family Unification
– Jews have no restrictions preventing their living with or being unified with spouses and children who are from a foreign country, not citizens of Israel. By contrast, Palestinians of all categories are not afforded the same right to family unification.

Citizenship
– Israel has refused to allow a Palestinian state to emerge and at the same time has refused Palestinians in occupied Palestinian territory to gain citizenship in Israel. By contrast, Jews from anywhere in the world are rewarded with automatic citizenship and substantial monetary benefits for transferring into and living in occupied Palestinian territory.

Permit System
– Israel has imposed a burdensome permit system which requires Palestinians to get a permit for everything from repairing their home, making a deposit in their bank account, and planting onions, to which fields Palestinians may use their tractors. Often permits are issued or the permit system is enforced depending on the Palestinians’ willingness to collaborate with their Israeli occupier.

Economic Rights
– Israel prevents imports, exports, and Palestinian people from moving freely throughout Palestinian territory. This ‘closure’ policy has halted Palestinian economic development by fragmenting Palestinian economic space, raising the cost of doing business, and eliminating the predictability needed to carry out successful business.

– Palestinians must obtain permits from Israel to grow crops. Permits are granted based on whether Palestinian crops compete with Israeli agricultural production.

– A Palestinian may not establish a factory or business employing more than ten individuals.

Trade Unions
– Palestinians laborers must pay 11% of their wages to Israel’s national trade union, Histanrut, for insurance tax. Yet Palestinians do not receive Histanrut insurance benefits such as unemployment compensation, disability benefits, or old age pensions. In addition Palestinian laborers pay 1% of their wages to Histanrut for membership dues. Yet Histanrut represents only Jewish laborers in disputes, and cooperates with the Israeli military in tightening control over Palestinians.

Right to an Education
– Israel denies Palestinians the right to an education through indirect measures such as creating obstacles to movement so Palestinian students cannot get to their schools; repeated closure of Palestinian schools; military attacks on schools and students; destroying educational infrastructure; and denying Palestinian students exit permits preventing them from studying abroad.

Freedom of the Press
– Israel restricts media reporting information from Palestinian territory by direct censorship; by refusing to issue or renew press cards, restricting the movement of the press, damaging or destroying radio and TV installations; through arbitrary arrest and detention of journalists; and by beating, torturing, and killing journalists.

– The Israeli press practices a codified system of self censorship (Nakdi Report) including prohibition of the use of terms such as “Palestinian,” “Palestine,” “East Jerusalem,” or references to areas in the West Bank by their Palestinian name, instead referring to areas of the West Bank as Judea and Samaria.

– Reporters without Borders, a journalism organization advocating freedom of the press internationally, ranks Israel 146th out of 169 in their annual press freedom index.

– Palestinian newspapers must have an Israeli military permit and publications must be pre-approved by the military censor.

Israel’s practices, Apartheid Pillar 2: Segregation; exploitation of resources

• After occupying Palestinian territory in 1967, Israel issued Administration Order #1 annexing Palestinian East Jerusalem to the State of Israel.
• In 1967 Israel issued military orders declaring all Palestinian surface and ground water “public property” and the “sovereign property of Israel.”
• In 1978, the Jewish Agency/World Zionist Organization/Jewish National Fund declared the West Bank a permanent part of the “Land of Israel.”
• These para-state organizations laid out a master plan (the Drobles Plan) placing Jewish settlements and Jews-only highways around and between Palestinian populations with the stated purpose of carving up the territory to promote Jewish domination and prevent the creation of a Palestinian state.
• By the 1990s, the corridors of Jewish settlements and Jews-only highways enforced complete segregation of Jews and non-Jews. Palestinians have been pushed into disjointed, ever-shrinking enclaves.

Segregation
– Israel has appropriated over 50% of the West Bank for the exclusive benefit of Jews including settlements and outposts; nature preserves; special security zones; the wall; agricultural development for Jewish settlers; closed military zones; and a Jews-only highway system. Palestinians are prohibited from using, or even crossing, the extensive Jews-only highway system that allows Jews to travel freely between settlements and between the West Bank and the state of Israel.

– Israel’s security wall alone appropriates 10% of the West Bank by fencing that land into Israel proper.

– Tens of thousands of Palestinians have been trapped in the ‘seam zone,’ their homes and villages are walled out of the West Bank. They are not allowed to pass into Israel for services and likewise cannot freely pass through the ‘wall’ into Palestinian territory for services and community. In contrast, a Jew from anywhere in the world, Israeli citizen or not, is free to travel in and out of the seam zones.

– By September 2008, Israel had established 699 restrictions to Palestinian movement within the West Bank including checkpoints, roadblocks, trenches, earth mounds, road gates, 89 ‘flying’ checkpoints (weekly average), and the ‘security wall.’

– As a result of this system of security walls, settlements, and highways, Israel has deliberately severed East Jerusalem from the rest of the West Bank. The West Bank is divided into reserves in which residence and entry is determined by each group’s identity. Israel has also sealed and isolated the Gaza Strip from the rest of Palestinian territory.

Exploitation of resources
– Israel integrated the Palestinian electricity infrastructure and water supplies into that of Israel, thus denying Palestinians control over their own municipal services and water resources.

– Israel diverts all of Palestinian Jordan River water and 87% of Palestinian ground water to the state of Israel proper and the illegal Jewish settlers. The remaining 13% of Palestinian ground water is distributed back to 2.5 million Palestinians living in the West Bank.

– Israel cuts off Palestinian access to water by destroying wells; destroying all Palestinian pumps and ditches accessing the Jordan River; destroying cisterns and irrigation systems; preventing the construction of new water infrastructure; preventing the repair of out-dated infrastructure; preventing Palestinians from drilling new wells; and hindering access through ‘security measures’ such as roadblocks, closures, checkpoints, and the wall.

– The route of Israel’s security wall delineates the eastern boundary of high groundwater production from the Western Aquifer. The wall fences those areas of high water production into Israel, closing off Palestinian access to more than 95% of their groundwater resources, over 630 million cubic meters of water per year.

– Since 1967, not one permit has been granted for the drilling of new Palestinian controlled wells in the largest and most productive of all the aquifer basins, the Western Aquifer.

– Palestinians pay from four to twenty times more for water than Jewish settlers pay, but are restricted to 10 to 60 liters of water per day, less than the 100 liters-per-day minimum standard set by the World Health Organization. Jewish settlers enjoy from 274 to 450 liters of water per day.

– Five thousand Jewish settlers living in the Jordan Valley consume the equivalent of 75% of the water used by the entire West Bank population of over 2.5 million Palestinians.

– All 149 Israeli-approved Jewish settlements in the West Bank are connected to a running water network, while over 200 Palestinian communities in the West Bank have no running water.

Gaza Aquifer, the only source of freshwater in the Gaza Strip
– Israel, through years of over-pumping deep bore wells along the Gaza Strip, has drawn sewage and salt water contamination into the Gaza aquifer.

– Israel reduced natural recharge of the Gaza aquifer by constructing a physical barrier or “verge” to prevent fresh water from the Hebron Hills from reaching the Gaza aquifer.

– Today 90 to 95% of the Gaza aquifer is unfit for human consumption, much of it unfit even for irrigation or showering.

– Between 2000 and mid-2006, Israel destroyed 244 of Gaza’s wells and destroyed 6.2 miles of culinary water lines.

– By January 2008, 40% of the homes in Gaza had no running water.

Israel’s practices, Apartheid Pillar 3: Matrix of security laws to suppress opposition

• Security for the state of Israel has been equated with protection for Israel’s institutions—the same institutions that enforce domination of Palestinians.
• All Palestinian resistance to Israeli domination is treated as a “security threat.” Palestinians resisting are labeled “terrorists.”
• Israel invokes ‘security’ to justify sweeping restrictions on Palestinian freedom of expression, assembly, association, and movement.
• Assassinations, torture, arbitrary arrest and imprisonment, and no due process are sanctioned by the state of Israel and often approved by the Israeli judicial system.
• Israel’s military court system is the “institutional centerpiece of Israel’s apparatus of control over Palestinians.”

Military courts
– From 2002 to 2006, Israel’s military courts filed more than 43,000 indictments against Palestinians of which only one third were security related and only 1 per cent involved defendants charged with causing intentional deaths.

– Israel’s military courts do not comply with international standards of due process.

– There is no ‘presumption of innocence,’ placing burden of proof on the defense.

– A Palestinian defendant and attorney are not informed of charges against him or her until the first hearing (after the indictment has already been filed). The defendant is expected to respond immediately with no time to study the indictment.

– Indictments are written and presented in Hebrew—a language the defendant does not understand.

– Court decisions can be based on “secret evidence” not provided to a detainee or his or her lawyer.

– Decisions of the court are not published.

– All judges are Israeli military officers, many without legal background or education.

– If a defendant refuses to plea-bargain, the result is a far more severe penalty.

– 95% to 97% of convictions are the result of plea-bargains.

– The average hearing lasts just 3 minutes and 4 seconds.

– In 2006, acquittals were obtained in only 0.29% of cases.

Mass incarceration
– Over 40% of the Palestinian male population has been imprisoned at some time, many without charges in repeating 6-month administrative detention terms that can go on for years.

– By April 2009, 45 members of the Palestinian Legislative Council, over one third of the democratically elected parliament, were imprisoned, most convicted of belonging to a political party Israel deems a “threat,” and eight administratively detained without any charges or trial.

Prosecuting children
– Palestinian children are prosecuted as adults at age 12. Jewish settler children are not prosecuted as adults until age 18.

– Over 700 Palestinian children are prosecuted by Israeli military courts each year, mostly for throwing stones including throwing stones at the wall. Throwing stones carries a prison term of six months to twenty years.

Freedom of assembly and association
– Palestinian public gatherings of more than ten people are forbidden unless Israel is given advance notice and the names of all attendees.

– Israel uses live ammunition, tear gas, sound bombs, rubber-coated steel bullets, and physical violence against public gatherings and demonstrations.

Persecution of organizations or persons because they oppose apartheid
– Israel has declared most Palestinian political parties to be “terrorist organizations.” All charitable, educational, or cultural organizations deemed to be connected directly or indirectly to a political party are subject to closure, destruction, and military attacks.

– In 2008, Israel carried out a military attack targeting a residential area, a school, two medical clinics, and two orphanages because Israel suspected some donors to the charity that built them to be members of Hamas.

Cruel and inhumane treatment: Gaza
– From 2000 to 2004, Israel demolished over 2500 homes in the Gaza Strip leaving 16,000 Palestinians homeless.

– In 2006, Israel bombed the Gaza power plant destroying all six transformers and halting electricity production, leaving Gaza almost completely dependent on Israel as the sole provider of electricity, power, desalination, pumping sewage, and pumping water.

– After years of systematic bombing and destruction, which transformed Gaza into a dependent population, Israel isolated Gaza with an encircling ‘security wall.’ Then in October 2007, Israel initiated a blockade on Gaza limiting fuel, water, and electricity and cutting basic supplies to less than 1/5 their former levels. 95% of Gaza’s industries shut down; poverty levels reached 80%; hospitals experienced power cuts of 8 to 12 hours a day; thirty to forty million liters of raw sewage poured into the Mediterranean sea every day; 1.1 million Gazans were living below the poverty line.

– Gaza’s fishing grounds extend 20 miles off shore, yet Israel enforced a three-mile limit by opening fire on Palestinian fishing vessels beyond three miles, severely damaging Palestinian fishermen’s livelihood and denying a viable food source to Gaza.

– On December 27, 2008, Israel launched “Operation Cast Lead,” a three-week military attack on Gaza, killing 1380 Palestinians and injuring 5380. During this attack Israel prevented Palestinian civilians from leaving Gaza, “subjecting the entire population to the extreme physical and psychological hazards of modern warfare.”

–Since “Operation Cast Lead,” Israel has continued the blockade, preventing Palestinians from rebuilding, thus deepening the humanitarian disaster in Gaza.

Selected Examples of the 2500 Military Orders Governing Palestinians

• Military Order #818: establishes how Palestinians can plant decorative flowers.
• Military Order #998: requires Palestinians to get Israeli military permission to make a withdrawal from their bank account.
• Military Order #93 and amendment: gives all Palestinian insurance businesses to the Israeli Insurance Syndicate.
• Military Order #96: forbids transport or purchase of goods on a donkey.
• Military Order #537: removes democratically elected Mayors of West Bank cities from their position.
• Military Order #811 and #847: allows Jews to purchase land from unwilling Palestinian sellers by using a “power of attorney.”
• Military Order #25: forbids public inspection of land transactions.
• Military Order #58: makes land transactions immune to review so long as the transaction was carried out by an Israeli “acting in good faith.”
• Military Order #58, Article 5: says any land transaction will not be voided even if it is proved the transaction was invalid.
• Military Order #101: forbids a gathering of more than 10 people unless the Israeli military receives advance notice with names of all participants.
• Military Order #107: bans publications including works on Arabic grammar, histories of the Crusades, and works on Arab nationalism.
• Military Order #92 and #158: gives the Israeli military control of all West Bank and Gaza Strip water.
• Military Order #128: gives the Israeli military the right to take over any Palestinian business which does not open during regular business hours.
• Military Order #1015: requires Palestinians to get Israeli military permission to plant and grow fruit trees. Permits expire in one year or each June 15th.
• Military Order #847: declares only Israeli notaries can authenticate signatures.
• Military Order #134: prohibits Palestinians from operating tractors or other farm machinery made in Israel or imported from any other country.
• Military Order #363: requires Palestinian mechanics to report to the Israeli military the particulars of any and all cars they repair.
• Military Order #1147 (amendment): requires Palestinians to get permission from the Israeli military to grow onions.
• Military Order #1229: authorizes Israel to hold Palestinians in administrative detention for up to six months without charge or trial. Six-month detentions can be renewed indefinitely.

Discussion: Future Direction

The conclusions of the study by the Human Sciences Research Council of South Africa were limited to Israel’s practices in occupied East Jerusalem, the West Bank and the Gaza Strip. The study found Israel’s practices in these territories constitute both colonialism and apartheid.

The study did contain much evidence of similar practices within the state of Israel suggesting the need for studies in other areas where Israel’s laws dominate. That would include Israel’s practices within the state of Israel proper where 1.7 million Palestinian Israelis, nearly 24% of the population, are considered “citizen non-members of Israel and afforded a status inferior to that of Jewish citizens;” Israel’s practices regarding Palestinian refugees where Israel’s citizenship laws place inhumane limits on refugees’ right to return to their homes and reclaim their property confiscated by Israel in 1948 and 1967; and Israel’s practices in the occupied Golan Heights.

Under International Law, practices of colonialism and apartheid are judged damaging to international legal order and seriously threaten world peace and security. Findings of colonialism and apartheid legally obligate third party nations to oppose the colonialism-apartheid system. Findings of apartheid, a crime against humanity, also give rise to individual criminal responsibility.

The State of Israel has the duty to:

1. Cease its unlawful activity
2. Dismantle the structures of colonialism and apartheid
3. Promote full rights and expression of the Palestinian people
4. Pay reparations and damages to the Palestinians people

Third party States are obligated to:

1. Not recognize the illegal situation as lawful
2. Not render aid or assistance in maintaining the situation
3. Cooperate to bring the illegal situation to an end
4. Not become complicit in the crimes by failing to fulfill the first three obligations

As a next step, the Human Sciences Research Council of South Africa strongly recommends that states take action to meet their legal obligations under international law and urgently request the International Court of Justice render an advisory opinion on the question of Israel’s practices in occupied Palestinian territory.

Concerned citizens play a critical role in bringing their governments forward on this issue, from awareness of breaches of international law and human rights to responsibility. The report of the Human Sciences Research Council of South Africa recognizes Israeli apartheid and colonization as a matter of global significance. They have named and delineated this egregious policy. The study warns that states providing aid to Israel can be found complicit in this international crime and implies that individuals aiding Israel may bear criminal responsibility. The study further suggests that international methods that helped end apartheid in South Africa are applicable to ending Israeli apartheid.

Specifically, individuals can meet with their representatives; petition their representatives to request an advisory opinion from International Court of Justice on the question of Israel’s practices in occupied Palestinian territory; hold non-violent protests; and join in international boycott, divestment and sanctions efforts—all strategies similar to those used to end South Africa’s apartheid.

The Israeli Committee Against House Demolitions (ICAHD) was one of the first Israeli organizations to endorse a boycott, divestment, and sanctions (BDS) campaign and to formulate a statement, issued in January 2005, calling on the international community to support it. Over the past decade and a half ICAHD has played a key role in expanding the BDS campaign and working with groups around the world in identifying effective targets. This revised statement reaffirms ICAHD’s support for BDS as an instrument of Palestinian liberation and brings our call into the framework of the Unified Palestinian Civil Society Call of 2005.

After more than four decades of diplomatic and grassroots efforts aimed at inducing Israel to end its Occupation while nevertheless watching it grow ever stronger and more permanent, ICAHD is issuing this statement in support of a campaign of BDS based upon the fundamental principles of the Unified Palestinian Civil Society Call:

• Ending Israel’s occupation and colonization of all Arab lands and dismantling the Wall;
• Recognizing the fundamental rights of the Arab-Palestinian citizens of Israel to full equality; and
• Respecting, protecting and promoting the rights of Palestinian refugees to return to their homes and properties as stipulated in UN resolution 194.

Such a formulation addresses the fundamental issues underlying the conflict between Israelis and Palestinians; it targets Israel’s Occupation policy and its structured discrimination against its Arab-Palestinian citizens rather than Israel per se. Without specifying a particular solution to the conflict, a BDS campaign will be in effect either until Israel becomes a truly democratic state of all its citizens living peacefully alongside a Palestinian state or a single state, bi-national or unitary, which encompasses both peoples.

Since sanctions are a powerful, non-violent means of resisting oppression, ICAHD supports the following actions:

• Stopping the purchase of Israeli arms, security products and services by governments, local authorities and corporations, while making the sales or transfer of arms to Israel conditional upon their use in ways that do not perpetuate the Occupation or violate human rights and international humanitarian law;
• Divesting from companies that profit from involvement in the Occupation or help perpetuate it;
• Boycott of settlement products, including annulment of the “Association Agreements” between Israel and the European Union due to Israeli violations of marketing settlements products as “Made in Israel” and the Agreements human right provisions;
• Boycott of Israeli academic institutions, which have not fulfilled their responsibility of upholding the academic freedoms of their Palestinian counterparts. Our call for an academic boycott means refraining from participation in any form of academic and cultural cooperation, collaboration, or joint projects with Israeli institutions. It does not call for boycotting individual scholars or researchers in any way;
• Boycott of cultural events, be they performances of Israeli performers or artists abroad or of foreign performers and artists appearing in Israel, of participation in cultural events such as book or trade fairs held in Israel or of Israeli installations abroad, except those of Israelis and internationals who stand in solidarity with the principles listed above and whose performances at least refer to them;
• Boycott of participation in Israeli sports events and of Israeli participation in sports events abroad;
• Endeavoring to get academic, professional and cultural associations to adopt resolutions condemning Israeli policies; and
• Holding individuals, be they policy-makers, military personnel carrying out orders or others, personally accountable for human rights violations, including trial before international courts and bans on travel to other countries.

ICAHD calls on the international community – the UN, governments, political parties, human rights and political groups, trade unions, university communities and faith-based organizations, as well as concerned individuals – to do everything possible to hold Israel accountable for its occupation policies and actions while ensuring the equal rights and security of both the Palestinian and Israeli peoples. We also call on the Palestinian Authority and other Palestinian political organizations to adhere to human rights conventions and support the joint efforts of our civil societies to reach an end to this tragic conflict and usher in a just peace for all the peoples of the region. The urgency of this appeal is of the utmost.

The Israeli attack on Gaza in December 2008/January 2009 was not merely a military assault on a primarily civilian population, impoverished and the victim of occupation and besiegement these past 42 years. It was also part of an ongoing assault on international humanitarian law by a highly coordinated team of Israeli lawyers, military officers, PR people, and politicians, led by (no less) a philosopher of ethics. It is an effort coordinated as well with other governments whose political and military leaders are looking for ways to pursue “asymmetrical warfare” against peoples resisting domination and the plundering of their resources and labor without the encumbrances of human rights and current international law. It is a campaign that is making progress and had better be taken seriously by us all.

Since Ariel Sharon was indicted by a Belgian court in 2001 over his involvement in the Sabra and Shatila massacres, and Israel faced accusations of war crimes in the wake of its 2002 invasion of the cities of the West Bank, with its high toll in civilian casualties (some 500 people killed, 1,500 wounded, more than 4,000 arrested), hundreds of homes demolished, and the urban infrastructure utterly destroyed, Israel has adopted a bold and aggressive strategy: alter international law so that non-state actors caught in a conflict with states and deemed by the states as “non-legitimate actors” (“terrorists,” “insurgents” and “non-state actors,” as well as the civilian population that supports them) can no longer claim protection from invading armies. The urgency of this campaign has been underscored by a series of notable setbacks Israel subsequently incurred at the hands of the UN. In 2004, at the request of the General Assembly, the International Court of Justice in The Hague ruled that Israel’s construction of the wall inside Palestinian territory is “contrary to international law” and must be dismantled — a ruling adopted almost unanimously by the General Assembly, with only Israel, the US, Australia, and a few Pacific atolls dissenting. In 2006 the UN Commission of Inquiry concluded that “a significant pattern of excessive, indiscriminate and disproportionate use of force by the IDF against Lebanese civilians and civilian objects, failed to distinguish civilians from combatants and civilian objects from military targets.” The harsh criticism of the UN’s Goldstone report on Gaza accusing the Israeli government and military again of targeting Palestinian civilians and causing disproportionate destruction has made this campaign even more urgent.

Fortunately, it is an uphill battle. The thrust of just war theory, from which international humanitarian law (IHL) draws, is to limit warfare and, in particular, to regulate its conduct and scope. Wars between states should never be total wars between nations or peoples. Whatever happens to the two armies involved, whichever one wins or loses, whatever the nature of the battles or the extent of the casualties, the two nations, the two peoples, must be functioning communities at the war’s end. The war cannot be a war of extermination or ethnic cleansing. And what is true for states is also true for state-like political bodies such as Hamas and Hezbollah, whether they practice terrorism or not. The people they represent or claim to represent are a people like any other (Margalit and Walzer 2009). Protecting the lives, property, and human rights of civilians caught up in warfare from the power and impunity of states is especially relevant in our age when, as British General Rupert Smith (2005) tells us, modern warfare is rapidly moving away from the traditional inter-state model to what he calls a “new paradigm” — “war amongst the people” — in which “[w]e fight amongst the people, not on the battlefield.” A more popular term used by military people, “asymmetrical warfare,” is perhaps more honest and revealing, since it highlights the vast power differential that exists between states and their militaries and the relative weakness of the non-state forces confronting them.

Now the issue of adapting laws and ethical approaches coming out of traditional inter-state warfare to new forms of “asymmetrical warfare” is a legitimate and vital endeavor. As Judge Richard Goldstone indicated in the report of the United Nations Fact Finding Mission on the Gaza Conflict (2009:5), “The Mission interpreted [its] mandate as requiring it to place the civilian population of the region at the centre of its concerns regarding the violations of international law.” Two prime issues of concern arise here: protecting all non-combatants finding themselves caught up in armed conflict, whether from state or non-state adversaries, and the degree to which non-state actors must be held accountable under IHL, no matter how just their cause may be. Thus the Goldstone Report, recognizing the limitations under which non-state actors operate, specified as well the obligation of Palestinian armed groups “to exercise care and take feasible precautions to protect the civilian population in Gaza from the inherent dangers of the military operations.”

Common sense and justice argue against a symmetry of responsibility between heavily armed and coordinated state-sponsored armies able to exert enormous force in order to exercise effective control over a territory and its people (Israel over the Occupied Palestinian Territories, in this case) and the military weakness, financial constraints, and fundamental difficulties of non-state actors resisting oppression in either protecting their people or creating a neutral “battleground” separate from its civilian populations (as in the case of the Palestinians). Nonetheless, even a certain implied symmetry introduced by the Goldstone committee in which non-state actors possess legitimacy as “a side” is unacceptable to Israeli political and military leaders. This, despite the fact that, in 1960, the UN General Assembly’s Declaration on the Granting of Independence to Colonial Countries and Peoples endorsed the right of peoples to self-determination and, by extension, their right to resist “alien subjugation, domination and exploitation” — again, with the obligations set out by the Goldstone Report. Nor is the notion that states and their armies should be significantly constrained in their military actions by IHL acceptable to Israeli decision-makers, political and military. They seek, therefore, to alter international law in ways that enable them — and by extension other states involved in “wars on terror” — to effectively pursue warfare amongst the people while eliminating both the legitimacy and protections enjoyed by their non-state foes.

This campaign is led by two Israeli figures: Asa Kasher, a professor of philosophy and “practical ethics” at Tel Aviv University, the author of the Israeli army’s Code of Conduct, and Major General Amos Yadlin, former head of the IDF’s National Defense College, under whose auspices Kasher and his “team” formulated the Code of Conduct, and today the head of Military Intelligence. And, Kasher vigorously asserts, it is completely appropriate and understandable that Israel should be leading it. “The decisive question,” he says,

is how enlightened countries conduct themselves. We in Israel are in a key position in the development of law in this field because we are on the front lines in the fight against terrorism. This is gradually being recognized both in the Israeli legal system and abroad. After the debate before the High Court of Justice on the issue of targeted killings there was no need to revise the document [on the ethics of fighting terrorism] that Yadlin and I drafted even by one comma. What we are doing is becoming the law. These are concepts that are not purely legal, but also contain strong ethical elements.

The Geneva Conventions are based on hundreds of years of tradition of the fair rules of combat. They were appropriate for classic warfare, where one army fought another. But in our time the whole business of rules of fair combat has been pushed aside. There are international efforts underway to revise the rules to accommodate the war against terrorism. According to the new provisions, there is still a distinction between who can and cannot be hit, but not in the blatant approach which existed in the past. The concept of proportionality has also changed (emphasis added, qtd. in Ha’aretz, Feb. 6, 2009).

Customary international law accrues through an historic process. If states are involved in a certain type of military activity against other states, militias, and the like, and if all of them act quite similarly to each other, then there is a chance that it will become customary international law…. I am not optimistic enough to assume that the world will soon acknowledge Israel’s lead in developing customary international law. My hope is that our doctrine, give or take some amendments, will in this fashion be incorporated into customary international law in order to regulate warfare and limit its calamities (Kasher 2009:7).

In their assault on protections afforded to non-state actors and the populations that support them by IHL, Kasher and Yadlin go after two of the most fundamental principles of IHL: the Principle of Distinction and the Principle of Proportionality.

The Principle of Distinction, embodied in the four Geneva Conventions of 1949 and their two Additional Protocols of 1977, lays down a hard-and-fast rule: civilians cannot be targeted by armies and, on the contrary, must be protected. Article 3 of the Fourth Geneva Convention states: “Persons taking no active part in the hostilities…shall in all circumstances be treated humanely….To this end the following acts are and shall remain prohibited at any time and in any place whatsoever with respect to the above-mentioned persons: violence to life and person…and outrages upon personal dignity.”

The Principle of Proportionality, embodied in the 1977 Protocols to the Fourth Geneva Conventions (to which neither the US nor Israel is a signatory, but which nevertheless, as customary law, binds them), considers it a war crime to intentionally attack a military objective in the knowledge that the incidental civilian injuries would be clearly excessive in relation to the anticipated military advantage. “The presence within the civilian population of individuals who do not come within the definition of civilians,” says Protocol I, Article 50 (3), “does not deprive the population of its civilian character.” Undermining these principles is therefore a key to what Kasher and Yadlin (2005) put forward as their “new doctrine of military ethics.” It is based on privileging states in their conflicts with non-state actors and on giving them the authority to deem an adversary a “terrorist,” a term lacking any agreed-upon definition in IHL and one which obviously removes any legitimacy a non-state actor so labeled might otherwise have. Indeed, Kasher and Yadlin’s “Just War Doctrine of Fighting Terror” is grounded on a tendentious definition of “terrorism” custom-tailored to legitimize state policies and actions. We define an “act of terror,” they (2005:2) write,

as an act, carried out by individuals or organizations, not on behalf of any state, for the purpose of killing or otherwise injuring persons, insofar as they are members of a particular population, in order to instill fear among the members of that population (‘terrorize’ them), so as to cause them to change the nature of the related regime or of the related government or of policies implemented by related institutions, whether for political or ideological (including religious) reasons.

By defining terrorism as “an act” carried out by an individual or organization, Kasher and Yadlin both de-contextualize and de-politicize the protracted struggles of non-state actors, including those of all peoples oppressed by state (and corporate) regimes. Although they admit a certain legitimacy to “guerilla warfare,” reducing a popular struggle to a series of discrete acts makes it possible to label an entire resistance movement “terrorist” purely on the basis of one or more particular acts, with no regard to its situation or the justness of its cause. Once this is done, it is easy to criminalize non-state resistance, since terrorism is, in Kasher’s words, “utterly immoral.” When, for example, Palestinians or the Hezbollah attack Israeli soldiers on active duty, Kasher refers to these acts as “kidnapping” rather than “capturing” them.

This very language and approach also has the effect of privileging state actors, since it implies that state actions are by definition legitimate and not “utterly immoral.” Even when a country is accused of war crimes, it is often able to justify its actions by “military necessity.” It is extremely difficult to actually sanction or punish a country for war crimes even when they are deemed to have occurred, and even when all this takes place, “war crimes” possess a different meaning than the type of criminalization applied to non-state actors. States may be sanctioned, but their existential legitimacy is not removed. Germany was judged as having committed horrendous war crimes during the Nazi era, and paid certain penalties, but that did not prevent it from rejoining the international community immediately after the war. Thus Kasher and Yadlin define an act as terror by its “purpose” of terrorizing a particular population without the slightest thought of applying that principle to Israel’s own policies and actions over its occupation of 42 years, despite exhaustive documentation of that terrorization.

Just how self-serving the tendentious use of the concept “terror” can be is evident in Israel’s own attempts to have the Iranian Revolutionary Guards declared a “terror organization” even though, being an agent of a state, it would not fit into Kasher and Yadlin’s own state/non-state dichotomy. What, then, should prevent the international community from naming the IDF and various covert Israeli agencies such as the Mossad or the Shin Bet (the General Security Services) as “terror organizations”? The Goldstone Report itself concluded that Israel’s offensive against Gaza during Operation Cast Lead was “a deliberately disproportionate attack designed to punish, humiliate and terrorize a civilian population.” Cognizant of this contradiction, Kasher and Yadlin are careful to add a caveat: they define an act of terror as one carried out “not on behalf of any state.”

Having de-legitimized state-defined “acts of terrorism,” Kasher and Yadlin then go on to further legitimize state actions such as those taken by Israel against Hezbollah, Hamas, or, indeed, all Palestinian resistance by invoking “self-defense” — again, a claim which, according to Just War Theory and Article 51 of the UN Charter, only a state can make. In order to do so they begin the narrative of events leading up to the attack on Gaza with what the “terrorist” organization alone had done, launching rockets on the town of Sderot and its vicinity. Nothing of the fact that the vast majority of Gazans are refugees from 1948, denied their right of return and deprived of all their properties and assets. Nothing of the occupation since 1967 and the deliberate de-development of the Gazan economy; nothing of the exclusion since 1989 of Gazan workers from the Israeli job market upon which they had been made dependent, and thus their subsequent impoverishment; nothing of the years of settlement in which 7,000 Israelis lorded it over a million and a half Palestinians at a cost to the Palestinians of much in terms of their lives and livelihoods; nothing of the siege illegally imposed since 2006, or of the transformation of Gaza into the world’s largest open-air prison; nothing of the fact that until today much of the land of Gaza — and the sea — are off-limits to Palestinian farmers and fishermen; nothing of the fact that Gazans live in mud and sewage created by Israel’s wholesale destruction of their infrastructure; nothing of the wasted lives of the young people; nothing of the fact that Hamas observed an 18-month ceasefire and was willing to extend it, until Israel broke it on Nov. 4, 2008, setting off the rocket attacks. Nothing, in short, which would call into question whether the assault on Gaza was genuinely an act of self-defense.

Indeed, the process of de-contextualization is a prerequisite to the ethics Kasher offers as the basis of international morality, law, political practice, and warfare. Rather than taking into account Israel’s four decades and more of occupation over Gaza and the West Bank, in which the Occupying Power may be said to have at least a modicum of responsibility for what transpires, Kasher instead bases his entire moral justification of what Israel has done over the years on a disembodied “double effect” principle, according to which, “when we are seeking a goal that is morally justified in and of itself, then it is also morally justified to achieve it, even if this may lead to undesirable consequences — on the condition that the undesirable consequences are unavoidable and unintentional, and that an effort was made to minimize their negative effects.” As if maintaining a belligerent occupation for almost a half-century is unavoidable and unintentional, and Israel actually took steps to minimize its negative effects. This, then, sets up a hierarchy of priorities — indeed, “obligations” on states — that turn IHL on its head. The Principle of Distinction cannot be honored, Kasher and Yadlin argue, because “terrorists do not play by the rules.” Nothing less is required than a fundamental “updating the concept of war.” “As we sought to try and formulate how to fight terror,” Yadlin (2004) writes,

we understood that we were in a different kind of war, where the laws and ethics of conventional war did not apply. It involves not only the asymmetry of tanks…. The main asymmetry is in the values of the two societies involved in the conflict — in the rules they obey.

A new model of warfare — the counter-terrorism war — requires a new set of rules on how to fight it. The other side is fighting outside the rules and we have to create new ethical rules for the international law of armed conflict. The duty of the state is to defend its citizens. Any time a terrorist gets away because of concerns about collateral damage, we may be violating our main duty to protect our citizens. We look for alternatives so as not to cause collateral damage, or to cause the minimum amount of collateral damage, but the main obligation is to defend our citizens.

Thus, says Kasher, in an area such as the Gaza Strip in which the IDF does not have effective control, “the responsibility for distinguishing between terrorists and noncombatants is not placed upon [Israel's] shoulders, since it is not the effective ruler.” Military commanders must thus place prime importance on achieving their military objectives, since this is what self-defense depends upon. Next in priority is protecting soldiers’ lives — indeed, Kasher and Yadlin define soldiers as “civilians in uniforms,” thereby eliding the principle of a state’s duty to protect its citizens with its deployment of trained and armed combatants sworn to pursue its military aims. Only then does the army have to worry about avoiding injury to civilian non-combatants. “Sending a soldier [to Gaza] to fight terrorists is justified,” writes Kasher, “but why should I force him to endanger himself much more than that so that the terrorist’s neighbor isn’t killed?” asks Kasher. “From the standpoint of the state of Israel, the neighbor is much less important. I owe the soldier more. If it’s between the soldier and the terrorist’s neighbor, the priority is the soldier. Any country would do the same.”

Kasher introduces a radically new principle of distinction — that in territories where it does not exercise effective control a country does not bear the moral responsibility for properly separating between dangerous individuals and harmless ones (Kasher 2010) — as if simply asserting it lends it the necessary authority. And this is, in fact, the point. “If you do something for long enough,” says Colonel (res.) Daniel Reisner, former head of the IDF’s Legal Department, “the world will accept it. The whole of international law is now based on the notion that an act that is forbidden today becomes permissible if executed by enough countries….International law progresses through violations. We invented the targeted assassinations thesis [that extra-judicial killings are permitted when it is necessary to stop a certain operation against the citizens of Israel and when the role played by the target is crucial to the operation] and we had to push it. Eight years later it is in the center of the bounds of legality” (quoted in Kearney 2010:29). Or, as Kasher (2010) puts it, “The more often Western states apply principles that originated in Israel to their own non-traditional conflicts in places like Afghanistan and Iraq, then the greater the chance these principles have of becoming a valuable part of international law.”

Even the attempt to distinguish civilians from combatants was abandoned in the assault on Gaza. According to another report in Ha’aretz (3.2.10), “The Israel Defense Forces chose to risk civilians in Gaza in order to protect its soldiers during Operation Cast Lead, a high-ranking Israeli military officer told the British daily The Independent on Wednesday. The IDF officer claimed the traditional ‘means and intentions’ engagement principle — stating that a suspect must have both a weapon and a visible intent to use it before being fired at — was discarded during Israel’s Gaza incursion in late 2008 and early 2009.”

Does that mean that states cannot engage in terrorism? This is a pretty bold claim. In fact, the non-state “terrorism from below” which so concerns Kasher and Yadlin pales in its horror when compared to “terrorism from above:” State Terrorism. In his book Death by Government (1994:13), R.J. Rummel points out that over the course of the 20th century about 170,000 innocent civilians were killed by non-state actors, a significant figure to be sure. But, he adds,

during the first eighty-eight years of this [20th] century, almost 170 million men, women and children have been shot, beaten, tortured, knifed, burned, starved, frozen, crushed or worked to death; buried alive, drowned, hung, bombed or killed in any other of the myriad ways governments have inflicted death on unarmed, helpless citizens and foreigners. The dead could conceivably be nearly 360 million people.

And that doesn’t include Zaire, Bosnia, Somalia, Sudan, Rwanda, Saddam Hussein’s reign, the impact of UN sanctions on the Iraqi civilian population, and other state-sponsored murders that occurred after Rummel compiled his figures. It also does not account for all the forms of State Terrorism that do not result in death: torture, imprisonment, repression, house demolitions, induced starvation, intimidation, and all the rest.

“We do not deny,” Kasher (2009) concedes, “that a state can act for the purpose of killing persons in order to terrorize a population with the goal of achieving some political or ideological goal.” He then adds another crucial caveat:

However, when such acts are performed on behalf of a state, or by some of its overt or covert agencies or proxies, we apply to the ensuing conflict moral, ethical and legal principles that are commonly held to pertain to ordinary international conflicts between states or similar political entities. In such a context, a state that killed numerous citizens of another state in order to terrorize its citizenry would be guilty of what is commonly regarded as a war crime (emphasis added).

Kasher’s caveat — “a state that killed numerous citizens of another state in order to terrorize its citizenry” — apparently means that states can neither be accused of terrorism nor be held accountable for war crimes arising out of killing or terrorizing civilian populations such as the people of Gaza, since the latter are not citizens of another state.

As for the Principle of Proportionality, that, too, is a casualty of Kasher and Yadlin’s assault on IHL. Their alternative is what is known by the IDF as its Dahiya Doctrine. Coming out of the second Lebanon war of 2006, in which Israel destroyed the Hezbollah stronghold of Dahiya in Beirut, the Dahiya Doctrine states that attacks against Israel will be deterred by “harming the civilian population to such an extent that it will bring pressure to bear on the enemy combatants […] through the damage and destruction of civilian and military infrastructures which necessitate long and expensive reconstruction actions which would crush the will of those who wish to act against Israel” (PCATI 2009). According to the Goldstone Report (2009:48),

The tactics used by Israeli military armed forces in the Gaza offensive are consistent with previous practices, most recently during the Lebanon war in 2006. A concept known as the Dahiya doctrine emerged then, involving the application of disproportionate force and the causing of great damage and destruction to civilian property and infrastructure, and suffering to civilian populations. The Mission concludes from a review of the facts on the ground that it witnessed for itself that what was prescribed as the best strategy appears to have been precisely what was put into practice.

It then goes on to quote the head of Israel’s Northern Command, Gen. Gadi Eisenkott: “What happened in the Dahiya quarter of Beirut in 2006 will happen in every village from which Israel is fired on. […] We will apply disproportionate force on it and cause great damage and destruction there. From our standpoint, these are not civilian villages, they are military bases. […] This is not a recommendation. This is a plan. And it has been approved.” But here again, it is the assertion of a new version of the principle that is important. Thus, declares Kasher, the Principle of Proportionality does not have to do with inflicting civilian injuries clearly excessive in relation to the anticipated military advantage, as the international community now thinks, but the exact opposite: “Proportionality is justifiability of the collateral damage on grounds of the military advantage gained” (Kasher 2010).

The upshot of Kasher and Yadlin’s “updating the concept of war” was clearly evident in the attack on Gaza. “When senior Israel Defense Forces officers are asked about the killing of hundreds of Palestinian civilians during the fighting in the Gaza Strip,” Ha’aretz (Feb.6, 2009) reported,

they almost all give the same answer: The use of massive force was designed to protect the lives of the soldiers, and when faced with a choice between protecting the lives of Israeli soldiers and those of enemy civilians under whose protection the Hamas terrorists are operating, the soldiers take precedence. The IDF’s response to criticism does not sound improvised or argumentative. And it operated there not only with the backing of the legal opinion of the office of the Military Advocate General, but also on the basis of ethical theory, developed several years ago, that justifies its actions.

Prof. Asa Kasher of Tel Aviv University, an Israel Prize laureate in philosophy, is the philosopher who told the IDF that it was possible. In a recent interview with Ha’aretz, Kasher said the army operated in accordance with a code of conduct developed about five years ago for fighting terrorism. “The norms followed by the commanders in Gaza were generally appropriate,” Kasher said. In Kasher’s opinion there is no justification for endangering the lives of soldiers to avoid the killing of civilians who live in the vicinity of terrorists. According to Kasher, IDF Chief of Staff Gabi Ashkenazi “has been very familiar with our principles from the time the first document was drafted in 2003 to the present.”

Kasher’s argument is that in an area such as the Gaza Strip in which the IDF does not have effective control the overriding principle guiding the commanders is achieving their military objectives. Next in priority is protecting soldiers’ lives, followed by avoiding injury to enemy civilians…. Prof. Kasher has strong, long-standing ties with the army. He drafted the IDF ethical code of conduct in the mid-1990s. In 2003 he and Maj. Gen Amos Yadlin, now the head of Military Intelligence, published an article entitled “The Ethical Fight Against Terror.” It justified the targeted assassination of terrorists, even at the price of hitting nearby Palestinian civilians. Lt. Gen. Moshe Ya’alon, who was the IDF Chief of Staff at the time, did not make the document binding, but Kasher says the ideas in the document were adopted in principle by Ya’alon and his successors. Kasher has presented them to IDF and Shin Bet security service personnel dozens of times.

Such arguments are also being taken up by “pro-Israeli” critics of IHL. Amichai Cohen (2010), for example, writing in the Global Law Forum of the neo-con Jerusalem Center for Public Affairs, sums up Kasher and Yadlin’s argument succinctly (though marshalling numerous legal citations just as Kasher mobilizes ethical arguments): “The concept of proportionality permits military personnel to kill innocent civilians, provided that the intended targets of the operation are enemy forces and not civilians.”

And yet, when challenged, the philosophy, ethics, and principled argumentation of Kasher and Yadlin dissipate, and one is found in the same kind of emotional and half-baked discourse that typifies shouting matches in bars or on the street. When, for example, Uri Avnery (2009) challenges Kasher’s reduction of the Gaza operation as merely a justified defensive reaction to “continued rocket attacks on Israel by the terrorist organizations in the Gaza Strip,” Kasher (2009) retreats from his philosophical argumentation into personal attacks: “Nor is it a surprise,” he writes, “that Avnery does not want us to use the term ‘terrorists’ to describe the Palestinians — with whom he identifies — because of these negative moral connotations. He himself does not wish to be morally tainted as someone who identifies with terrorists.”

From here Kasher abandons intellectual analysis completely and descends into mere personal opinion and unsupportable suppositions. “Some people claim that a peace agreement between Israel and the Palestinians would provide Israeli citizens with the best protection against rockets and missiles, suicide attacks, and other horrors of terrorism,” he begins.

It is true that a democratic state is required to seek peace agreements with neighboring states and peoples. However, the idea that it is possible to reach a political settlement with the Palestinians that would be upheld by Hamas, Islamic Jihad, and other terrorist organizations is quite doubtful. Even if we accepted the plausibility of such a claim, it is all but certain that rocket attacks on Israel would continue throughout the negotiations. In fact, they would likely increase. Leaving a state’s citizens vulnerable to persistent threat is not morally justified by the mere fact of ongoing negotiations. Nor can the fact that negotiations are taking place justify avoiding the last-resort option after all alternative courses of action have failed…. There are those who call on Israel to engage in direct negotiations with Hamas, in order to rid its citizens of the threats posed to them by rocket attacks and other kinds of terrorist activity. This argument warrants a similar response. From a moral standpoint, demanding that Israel engage in direct negotiations with a terrorist organization that does not recognize its right to exist cannot be justified (emphasis added, Kasher 2009).

Apparently this method is common when Israelis attempt to alter IHL in order to justify unjustifiable practices. A few years ago the Up Front weekend magazine of The Jerusalem Post (April 15, 2005, p. 34) published an interview with an Israeli “expert in international law” who, tellingly, chose to remain anonymous. This what s/he said:

International law is the language of the world and it’s more or less the yardstick by which we measure ourselves today. It’s the lingua franca of international organizations. So you have to play the game if you want to be a member of the world community. And the game works like this. As long as you claim you are working within international law and you come up with a reasonable argument as to why what you are doing is within the context of international law, you’re fine. That’s how it goes. This is a very cynical view of how the world works. So, even if you’re being inventive, or even if you’re being a bit radical, as long as you can explain it in that context, most countries will not say you’re a war criminal.

This is a serious stuff. We are in the midst of the second battle of Gaza, a campaign not only to refute and defame the UN’s Goldstone Report and sanitize Israel’s actions there but to change international humanitarian law in a way that protects the powerful states and their armies while removing the fundamental rights of the world’s poor and downtrodden to resist. The stakes are high. What will happen to the Palestinians — or oppressed peoples everywhere — if Kasher & Co. succeed in striking the Principles of Distinction and Proportionality from international law? Imagine an entire world unprotected against occupation, invasions, exploitation, and warehousing — a global Gaza. It would be a world that reflects current reality: everyone would be either an Israeli Jew, part of a privileged global minority whose main ethical responsibility is towards defending itself against “terrorists,” or a Palestinian, part of an impoverished, occupied majority with no control over its resources or its future, which nevertheless carries responsibility for the well-being and security of its violent “zero-tolerant” masters.

Standing on the ramparts of international law to guarantee its integrity should be an integral part of the struggle against oppression everywhere. If the people of Gaza can become fair game, so can any of us. In terms of vulnerability as well as solidarity, we are all, indeed, Palestinians. If IHL needs to be altered to take into account the rise of non-state actors in international conflicts — and here we should note the increased use of “outsourced” private military contractors by states and corporations, the emergence of “failed states,” many of which combine state apparatus with criminal activity, and even the role played by NGOs — then it must be done in a way that continues to protect civilians and oppressed peoples against states, often their own. Kasher and Yadlin’s assault on IHL, sponsored and legitimized by the Israel government “in the name of” other states engaged in so-called wars of terrorism, threatens to give powerful governments, their militaries, and allied corporations a free hand in bringing about a global “order” friendly to their interests at the expense of the world’s peoples.

Given what Michael Klare calls “the new landscape of global conflict” — state-initiated resource wars (initiated or fueled, it must be noted, primarily by the powerful democratic states which control the global economic system and account for more than 80 percent of the world’s arms trade, whose revenues reached $1.46 trillion in 2008) — the prospect of states free of the constraints of IHL should give us all pause. For, as it turns out, the sites of future wars are largely in the very areas where people — framed as “terrorists” — are resisting the plundering of their resources, neo-colonialism, and their own permanent warehousing. These sites, Klare (2001) tells us,

will be places that harbor particularly abundant supplies of vital materials — oil, water, diamonds, minerals, old-growth timber — along with supply routes that connect these areas to major markets around the world. These regions will command attention from the media, dominate the deliberations of international policy makers, and invite the heaviest concentrations of military power… [They comprise] a wide band of territory straddling the equator.

Israel’s attempt to globalize its legal, moral, political, and military justifications for what it did — and continues to do — in Gaza, the West Bank, and Lebanon should concern us all. Just as Israel used Gaza as a laboratory for tactics and weapons of “counterinsurgency” and urban warfare, so, too, is it attempting to export its “new doctrines” in a way that fundamentally compromises the well-being of people caught in conflicts worldwide. As Kasher and Yadlin (2005:4) write explicitly,

the proposed principles are meant to be justified and practically applicable under any parallel circumstances. Moreover, those principles are intended to be universal in an additional crucial sense…. The different defense agencies of a democratic state that faces terror should follow principles that rest on universal moral grounds and on the professional and organizational ethical grounds related to each of those state agencies on its own, be it military, regular police, combat police or preventive intelligence.

In this sense, everyone resisting oppression is a Palestinian. The stakes involved in losing this second battle of Gaza are high indeed. Israel’s attempt to “globalize” Gaza imperils us all.

References
Avnery, Uri. 2009. “Operation Cast Lead and Just War Theory.” Azure 38 (Autumn).

Cohen, Amichai. 2010. Proportionality in Modern Asymmetrical Wars. Jerusalem: Jerusalem Center for Public Affairs.

Kasher, Asa. 2010. “A Moral Evaluation of the Gaza War — Operation Cast Lead.” Jerusalem Center for Public Affairs Brief 9(18).
—. 2009. ”Response to Uri Avnery.” Azure 38 (Autumn).
—. 2009. “Operation Cast Lead and the Ethics of Just War.” Azure 37:43-75.

Kasher, Asa, and Amos Yadlin. 2006. ”The Military Ethics of Fighting Terror: Principles.” Philosophia 34.
—. 2005. “Military Ethics of Fighting Terror: An Israeli Perspective.” Journal of Military Ethics 4(1): 3-32.
—. 2005. “Assassination and Preventive Killing.” SAIS Review 25(1): 41-57.
—. 2003. ”Ethical Counterterrorism.”

Kearney, Michael. 2010. Lawfare, Legitimacy, and Resistance: The Weak and The Law. Ms.

Klare, Michael T. 2001. Resource Wars. New York: Henry Holt.

Margalit, Avishai, and Michael Walzer. 2009. “Israel: Civilians and Combatants.” New York Review of Books 56(8). (May 14).

McMahan, Jeff. 2009. Killing in War. New York: Oxford University Press.

The Middle East Project. 2009. Occupation, Colonialism, Apartheid? A Re-assessment of Israel’s Practices in the Occupied Palestinian Territories Under International Law. Cape Town: Human Sciences Research Council.

The Public Committee Against Torture in Israel (PCATI). 2009. No Second Thoughts: The Changes in the Israeli Defense Forces’ Combat Doctrine in Light of “Operation Cast Lead.” Jerusalem.

Report of the United Nations Fact Finding Mission on the Gaza Conflict (“Goldstone Report”). 2009. Geneva: Human Rights Council.

Siboni, Gabriel. 2008. Disproportionate Force: Israel’s Concept of Response in Light of the Second Lebanon War. INSS Insight 74.

Smith, Rupert. 2005. The Utility of Force: The Art of War in the Modern World. New York: Vintage Books.

Yadlin, Amos. 2004. “Ethical Dilemmas in Fighting Terrorism.” Jerusalem Center for Public Affairs Brief 4(8).

Event times have been corrected.

Event Contacts

• Salt Lake City
  Aaron Wood, aww23@hotmail.com
• Seattle Sabeel
  Brenda Bentz, bbbentz@comcast.net
• Seattle Our Lady of the Lake
  Lorraine Hartmann, lorrainehartmann@comcast.net
• Bellingham
  Shirley Osterhaus, shirley.osterhaus@wwu.edu
• Honolulu Sabeel
  George Hudes, beemuse1@earthlink.net
• Santa Barbara
  AJPME, david@ajpme.org; Miriam Zouzounis, mimi_kz@yahoo.com
• San Luis Obispo
  Manzar Foroohar, mforooha@calpoly.edu
• Santa Cruz
  Scott Kennedy, kenncruz@pacbell.net
• Mt. Diablo and San Anselmo Sabeel
  Hassan Fouda, hfouda@yahoo.com
• Phoenix/Tempe
  Barbara Taft, beejayssite@yahoo.com

OK, so the Palestinian Authority will not unilaterally declare an independent Palestinian state. In fact, the whole issue seems a misunderstanding. Concerned that the US has backtracked on a two state solution based on the 1967 borders and that Israel was getting the world used to the “fact” that the settlements and the Wall, rather than ’67 borders, now defined the parameters of a future Palestinian state (on only 15% of historic Palestine), the PA simply wanted the Security Council to reaffirm that principle. “What should we do while the Israeli government is busy with fait accompli actions,” asked Palestinian negotiator Saeb Erekat, “but to turn to the Security Council to preserve the option of two states? We want the Security Council to declare that the two-state solution is the only option and that it would recognize the state of Palestine on the ‘67 borders and to live side by side with the State of Israel.” The PA hoped, perhaps even expected, that the US would go along. Through an escalation of rhetoric this simple clarification became the basis of speculation, against the background of President Mahmoud Abbas’s threatened resignation: that the Palestinians would attempt to force the hand of the international community and announce the establishment of their state.

But what if it did happen? What if Abbas would actually announce the establishment of a Palestinian state within the 1967 borders, ask the nations of the world to recognize it and then apply for admission to the UN?

The Palestinians are caught between a rock and a hard place. The rock is the steadily tightening noose that is the Israeli Occupation. Israel’s concentration of settlers in strategic blocs in East Jerusalem and the West Bank destroy any Palestinian territorial contiguity, and do so even if Israel removes the dozens of tiny settlements within the densely populated Palestinian “cantons.” Those settlement blocs have already been incorporated into Israel proper through the construction of some twenty-nine major Israeli highways, meaning that Israel has expanded “organically” from the 1967 Green Line to the border with Jordan. Even if the Separation Barrier is dismantled, the entire country has been fundamentally reconfigured; there is simply no more room for a coherent, viable, sovereign Palestinian state. And the suffering grows progressively worse. Hostile, callous Israeli soldiers continue to “man” hundreds of checkpoints throughout the Occupied Territories – checkpoints that, when incorporated into the Wall, take the form of massive terminals in which tens of thousands of men, women and children are subjected to long hours of waiting and humiliating treatment. The pace of house demolitions increases daily; 24,000 Palestinian homes have been demolished by Israel in the Occupied Territories since 1967, while Israeli courts have forced at least another 10,000 homeowners to demolish their own homes under threats of unbearable fines. The Palestinian presence in Jerusalem, the heart of Palestinian religious, cultural, political and economic life, is rapidly disappearing under a concentrated policy of settlement, expulsion of Palestinian residents from their homes and land expropriation intended, as Israel declares explicitly, to “judaize” the city. Without a meaningful Palestinian presence in Jerusalem there is no possibility of peace; indeed, no possibility of reconciliation between the West, which is seen as enabling Israeli expansion, and the entire Muslim world.

The hard place is the unlikelihood that negotiations with Israel, supported by the US and a compliant Europe, will go anywhere. The Oslo Process, which lasted seven years (1993-2000), saw Israel’s settlement population double to 400,000, while Palestinians found themselves imprisoned in Areas A and B – some 70 islands on but 40% of the West Bank – and that largest prison of all, Gaza. Oslo was followed by the Road Map that was followed by the Annapolis Process, all leading to the present impasse in which the Obama Administration has announced it has no plan. “Peace process” or not, negotiations or not, stalemate or not, Israel has never been prohibited from continuing to establish “facts on the ground” intended to foreclose a truly sovereign Palestinian state.

For the most part the Palestinian people have resisted. Two intifadas (four if you include the 1936-39 revolt against British immigration policies and the inability of the Palestinian majority to make its voice heard, and the 1948 war), plus ongoing armed struggle and thousands of non-violent actions from rebuilding demolished homes to the Beit Sahour tax strike. Occasionally the Palestinian leadership took a bold initiative, as when it succeeded in bringing Israel’s construction of the Separation Barrier before the International Court of Justice and, subsequently, the UN General Assembly, where it was condemned by both bodies. The current campaign of boycott, divestment and sanction (BDS) against key Israeli pillars of the Occupation and companies profiting from it represents yet another pro-active initiative of Palestinian civil society.

And then there’s the idea of unilaterally declaring a Palestinian state within the 1967 borders, which the Palestinian Authority has floated, intentionally or not, over the past few weeks. It’s not a new idea. The PLO declared Palestinian independence back in 1988, but without reference to borders such a move had little effect. During Oslo, a frustrated Arafat again threatened to unilaterally declare Palestinian sovereignty, but was dissuaded by Israel and the US. What would make another attempt more significant? Several things:

Rather than a general declaration of independence, the Palestinian Authority would declare a Palestinian state within specified borders, those of 1967 (the 1949 armistice line), which have already been recognized de facto over the years, from UN resolution 242 to the Road Map. Specifying the borders is what would differentiate this initiative from previous declarations based on principles of independence but without territorial claims, the latter supported even by Israel since it relieves it of pressures to end the Occupation by giving the Palestinians symbolic sovereignty.

The reasoning behind such an initiative is clear: to reverse both the balance of power and the dynamics of the negotiations. Because it occupies Palestinian territory, Israel is able to negotiate from a position of strength, while the Palestinians, with no leverage whatsoever, have no way to pressure Israel to meaningfully withdraw. Appeals to international law, which would have leveled the playing field, were nullified after the US, de facto supporting Israel’s claim that there is no occupation, classified the West Bank, East Jerusalem and Gaza as disputed territories. Instead of requiring Israel to relinquish its illegal settlements and other forms of control, this policy forces the Palestinians to negotiate every settlement, road and centimeter of land, unable in the end to compel Israel to make any concessions it does not want to make. By seeking international recognition of the Palestinian state within recognized borders, including membership in the UN, the Palestinians seek, finally, to end the Occupation while transforming Israel’s presence from that of an occupying power to one of an invader whose unilateral military and settlement activities, as well as its extension of its legal and planning systems into Palestine, constitute nothing less than an intolerable violation of Palestinian national sovereignty.

If the Palestinians’ declared their state within the boundaries accepted by the international community since 1967, it would be doing so not unilaterally but by agreement with the member states of the UN. The hope would be to secure American agreement, despite frantic Israeli attempts to head off such an initiative, after which the European countries would fall into place. The vast majority of countries in the rest of the world would at any rate recognize the Palestinian state.

Predictably, the US has rejected the rumored (or floated) initiative. The State Department lost no time issuing a statement saying, “It is our strong belief and conviction that the best means to achieve the common goal of a contiguous and viable Palestine is through negotiations between the parties.” Two senators who happened to be in Israel, Kaufman and Lieberman, let it be known that the US would veto any such resolution in the Security Council. The EU immediately fell into lock-step, with the Swedish Foreign Minister, whose country holds the rotating EU presidency, declaring that “conditions are not yet ripe” for such a move. Still, the Palestinians could decide to abandon – or at least balance – their long-standing American-centric approach to achieving self-determination by turning to the broader international community. Abbas is exploring such an option among the Arab, Muslim, Latin American, African and Asian blocs of nations. If the Security Council is unwilling to entertain such an initiative, the Palestinians, with broad-based international support, could turn to the UN General Assembly, which is empowered by a two-thirds majority to call a special emergency session and pass a resolution of approving the move, thus by-passing the US veto.

The Security Council cannot be by-passed completely; its approval is necessary before a state can become a member of the UN. But even a symbolic call from the majority of members in the General Assembly to recognize a Palestinian state within the 1967 borders and its urging the members of the Security Council to admit such a state into the UN would send a strong message to the Americans and their European clients. Unfortunately, the Palestinians’ declaration of statehood, in conformity to international agreements though it may be, conflicts with the concerns of other Security Council members regarding restive peoples in their own countries. Russia, which opposed the unilateral declaration of independence of Kosovo, faces similar actions in Chechnya, South Ossetia and elsewhere. China has a similar problem with the Uigars; France with Corsica; Britain (perhaps) with Wales and Scotland; Turkey with the Kurds, and so on. The US, which did support the Kosovars unilateral action and thus has no grounds to deny the Palestinians, nevertheless faces the perpetual challenge of Puerto Rican independence, not to mention the struggles of insurgents throughout the world. And yet, having the issue of Palestinian statehood come up before the Security Council – potential sponsors from among the rotating members might be Libya, Burkina Faso or Uganda – would spur a useful debate and help focus on the responsibility of Israel, the US and Europe for disappearing Palestinian rights. And, again and again, the Palestinians have to drive home forcibly and repeatedly that their declaration of statehood stands in complete conformity to the internationally agreed upon end-game of a Palestinian state within the 1967 borders. It is defiant only in the sense of their asserting their right to self-determination after years of being let down by the international community and having nowhere else to go.

Most important, such a Palestinian initiative would force a solution to their conflict with the Israelis. If it were to be accepted, years of drawn-out pseudo-negotiations and the deaths of thousands of Palestinians and Israelis could be avoided. It would also go a long way towards redeeming Obama’s Cairo address and, as is likely, would facilitate better relations with the Muslim world that would open new possibilities in regards to withdrawing militarily and achieving accommodation and stability. If the US agreed, of course, Europe, and perhaps Russia and China, would fall into place.

It should be remembered that in a two-state solution represented by the Palestinian declaration, Israel would remain on 78% of historic Palestine, despite the Jews becoming a minority population with the return of even some of the refugees – a pretty generous Palestinian compromise. Hamas rejected Abbas’s initiative by stating: If you want to declare a state, do so from the Mediterranean to the Jordan River. Yet, if a Palestinian state would actually emerge on all the Occupied Territories, it is likely that Hamas could not stand in the way of popular support for it – including in the refugee camps. The state that then arises would have sovereignty over its borders with Egypt and Jordan and the ability to enter into foreign alliances. It would possess a coherent territory, control of its natural resources (including water, its airspace and the communications sphere), a viable economy (especially given the inclusion of the Old City of Jerusalem and Bethlehem as tourist venues) and East Jerusalem as its political, religious and cultural capital and the ability to repatriate refugees. None of these things will the Palestinians get in negotiations with Israel. Given an agreed upon quid pro quo such as a shared Jerusalem, an extra-territorial passage between the West Bank and Gaza and a qualitative exchange of territory, the Palestinians may cede to Israel certain symbolic sites: a special status in the Jewish Quarter of the Old City and the historic core of the Etzion Bloc, making such a settlement more palatable to them. While the remaining settlements would become part of Palestine, the Palestinians would earn points if they invited the settlers to stay and live in integrated communities.

A unilateral declaration, if refused by the US with no prospect of genuine negotiations aimed at a Palestinian state in all the occupied territory within a strict time-line, would signal the definitive end of the two-state solution. At that point the Palestinians could unite on a program of a one-state solution, be it a democratic state of equal citizens or, more workable, a bi-national state. Crucial to this shift would be a vigorous Palestinian campaign showing that it was Israel that created a bi-national situation through its settlement project and Israel that eliminated the two-state solution, which the PLO had accepted way back in 1988. If Israel implements the steps it has threatened in response to a Palestinian declaration of independence – in particular the annexation of Area C, some 60% of the West Bank containing the settlements – the apartheid situation that emerges is clear and unacceptable even to the US and Europe. Israel has thereby torn the veil from the de facto apartheid that already exists and which Israel seeks to perpetuate. By its own hand Israel has reconfirmed the bi-national reality of Palestine/Israel and driven the stake into the heart of the two-state solution.

For all the risks it involves, a declaration of Palestinian statehood within the 1967 borders – which would garner recognition from the vast majority of states in the world – would seem a win-win proposition. At least it would break the vessels of an impotent, ineffective and less than honest American-led “peace process” that is going nowhere – indeed, can’t go anywhere because it requires a level of assertiveness (and pressure on Israel), perhaps even the imposition of a solution, that is completely lacking in either the American or European governments. It would also galvanize the civil society forces abroad, initiating a kind of ultimate BDS (boycotts, divestment, sanctions) campaign. Given the failure of the Palestinian Authority to effectively communicate its case, a unilateral declaration would thrust the underlying issues of the conflict – and Israel’s responsibility in particular – into the limelight, generating the sort of discussion in the media and elsewhere that is sorely needed.

All this, of course, is a highly unlikely scenario, though given Abbas’s anger and frustration at the American failure to stop Israeli settlement building (as I write this the Israeli government has just announced the construction of 900 housing units in the East Jerusalem settlement of Gilo), it is not altogether inconceivable. Although indicative of mounting Palestinian desperation, not all Palestinians support such a move. Hamas has rejected it, saying the Occupation must end before a state is declared. Palestinian policy-makers fear that the declaration, if it is seen as merely symbolic, could lock the Palestinians into a position where Israel could claim they now have self-determination but without the ability to actually claim their borders – a limbo reminiscent of the “state without borders” formulation of stage 2 of the Road Map, seen as a mortal danger by Palestinians. And supporters of the one-state solution, primarily in the Palestinian Diaspora but increasingly in the camps and the Occupied Territories themselves, have already moved on. But something must be done, and given the failure of the international community to either protect the Palestinians or rein in Israel, I, for one, am at a loss to suggest alternatives that address the urgency of a way out of Israel’s increasingly genocidal Occupation. (11/19/09)

(Jeff Halper is the Director of the Israeli Committee Against House Demolitions (ICAHD). He can be reached at jeff [at] icahd.org.

Jeff Halper with legendary singer and ICAHD supporter Pete Seeger.

Anyone who owns a radio probably knows the song “Turn, Turn, Turn” (To everything there is a season) very well. A number of versions of this song have become permanent fixtures on the play lists of most popular music radio stations. Here’s what the listeners don’t know: every time this song is played, the Israeli Committee Against House Demolitions receives a few dollars, which accumulate to “several thousand dollars every year,” according to the committee’s co-founder and coordinator.

The Israeli Committee Against House Demolitions (ICAHD) is a non-profit organization that uses non-violent means to oppose Israeli demolition of homes in the West Bank and East Jerusalem.

Seeger has been donating some of the song’s royalties to ICAHD for ten years.

The banjo-playing Seeger, 90, is considered one of the pioneers of American folk music. He is known for his political activism no less than for his musical achievements. In the 1930s he was involved in the establishment of worker unions, in the 1940s he opposed the war against Germany and in the 1950s he was interrogated by Senator Joe McCarthy over suspicions of belonging to the Communist Party. In recent years Seeger has been involved in efforts to clean up the Hudson River in New York and performed at U.S. President Barack Obama’s inauguration celebration.

The lyrics of the song “Turn, Turn, Turn” are the words of King Solomon from the book of Ecclesiastes. “All around the world, songs are being written that use old public domain material, and I think it’s only fair that some of the money from the songs go to the country or place of origin, even though the composer may be long dead or unknown,” Seeger said in an interview with Acoustic Guitar magazine in 2002.

“With ‘Turn, Turn, Turn’ I wanted to send 45 percent, because [in addition to the music] I did write six words and one more word repeated three times, so I figured I’d keep five percent of the royalties for the words. I was going to send it to London, where I am sure the committee that oversees the use of the King James version exists, and they probably could use a little cash. But then I realized, why not send it to where the words were originally written?”

ICAHD’s Halper met with Seeger in New York last week and remarked that “he said he thought it was appropriate that the biblical part of the song make its way to Israel – he doesn’t want to take credit for it.”

Halper brought another message from Seeger to the Israelis: “He said that artists and cooks – it was important for him to include cooks – must stand up and demand a just peace. That is the duty of artists and cooks.”

Seal of the United States of America

It was as if some official, perhaps one of President Obama’s “czars,” like the Czar for Demolishing American Credibility, had orchestrated a systematic campaign to isolate the US from the rest of the world, make it a political laughing-stock and, finally, render it a second-rate power capable of throwing around tremendous military weight but absolutely incapable of leading us to a better future. The Israel-Palestine conflict, while not the world’s bloodiest, constitutes, for many people of the world, a unique gauge of American interests and intentions. So consider the messages this string of actions sent out to the world:

• On August 10th, a letter was send to the President initiated by Democratic Senator Evan Bayh and Republican Senator Jim Risch, both members of the Senate Foreign Relations Committee, and backed by AIPAC, the Israeli lobby. Signed by seventy-one senators, it called on Arab states to normalize relations with Israel even though Israel has not frozen settlement building, has not stopped expropriating Palestinian land or demolishing Palestinian homes, and has not lifted the severe restrictions on Palestinian life that has impoverished the majority of the population. The letter reaffirmed to Israel that it has widespread bi-partisan support in Congress and does not have to be overly concerned with demands from the Administration, while signaling to the Arab and Muslim worlds that they are not taken seriously.
• On September 17th, the Human Rights Council of the UN accepted the Goldstone Report, the UN’s fact-finding mission on the Gaza conflict. Despite the mission’s charges over Israeli war crimes, South African jurist Richard Goldstone actually bent over backwards to protect Israel as much as possible. Thus the report does not mention Israel’s 42-year occupation of Gaza or its three year siege which has left a million and a half Gazans without adequate food, medical care or the basic necessities of life. Nor does it mention the fact that, rather than defending itself, Israel violated the cease-fire with Hamas and refused repeated appeals by Hamas to renew it. Indeed, the Report also speaks of Hamas’s violation of international law and demands that it, too, be investigated. Notwithstanding, the American representative to the UN, Susan Rice, immediately condemned the report (whether or not she actually read its almost 600 pages) and promised Israel that the US would stand behind its fight against the Report. Judge Goldstone asked the American government “to indicate where the report is flawed or unbalanced,” but never received a response.
• On October 31st, Secretary of State Hillary Clinton showed up in Israel and, in a press conference with Prime Minister Netanyahu, hailed as “unprecedented” the Israeli government’s readiness to “restrain” its settlement building. After months of begging Netanyahu to freeze settlement construction – including a dozen visits by envoy George Mitchell – the US simply caved in. Israel will continue expanding its settlements in East Jerusalem, will build another 3000 housing units in the Occupied Territories, will continue to build “public buildings” in the settlements and respond to their needs of “natural growth,” and will continue to approve additional construction – a dubious policy of “restraint” that will last only nine months or so. By thus abandoning the Palestinians, Clinton opened the way for Israel to accuse them of presenting “unreasonable preconditions” for starting negotiations — which Netanyahu promptly did in the same press conference.
• On November 3rd, the House of Representatives passed, by a vote of 344-36, a resolution calling on the President and the Secretary of State “to oppose unequivocally any endorsement or further consideration of the ‘Report of the United Nations Fact Finding Mission on the Gaza Conflict’ in multilateral fora” (i.e., the UN). Sponsored by four vociferously but well-placed pro-Israel members of Congress – Howard Berman (D-CA), the Chair of the House Foreign Relations Committee, Ileana Ros-Lehtinen (R-FL), the ranking Republican on the House Foreign Relations Committee, Gary Ackerman (D-NY), Chair of the Foreign Relations’ Sub-Committee on the Middle East and Dan Burton (R-IN), the Sub-Committee’s ranking Republican member – the resolution calls the Goldstone report “irredeemably biased and unworthy of further consideration or legitimacy” and “supports the Administration’s efforts to combat anti-Israel bias at the United Nations.”
• And just what haven’t American officials and members of Congress responded to? How about the UN Secretary General Ban Ki-moon’s call on Israel, on the same day the anti-Goldstone resolution was passed, “to end its provocative actions” in East Jerusalem. “The Secretary General,” the UN reported, “is dismayed at continued Israeli actions in occupied East Jerusalem, including the demolition of Palestinian homes, the eviction of Palestinian families and the insertion of settlers into Palestinian neighborhoods.”

Underlying the growing alienation between the United States and the rest of the world community, including Europe, is America’s failure, even under Obama, to embrace human rights as a guide to its foreign policy. At a time when many of the world’s people suffer from impoverishment, conflict and a sense that their governments have failed them, have left them unprotected, the promise of universal human rights means a lot. Human rights language has yet to reach the US. When, recently, I did the rounds of Congress and the State Department promoting a just resolution to the Israeli-Palestinian conflict, I was told that “justice” is not an active element in American foreign policy. I was advised by seasoned lobbyists not to even mention the term “human rights” in my meetings with senators and congresspeople, because it sounds anti-American, as if something trumps American law and policy (which human rights indeed does). But remove justice and human rights from foreign policy and you are left with short-range conflict management and damage control that, in the end, offers peace and security to no one. You certainly remove yourselves from the concerns of most people of the world.

The degree to which American policy regarding Palestinian rights diverges so sharply from even that of its European allies, not to mention from the Muslim world with which it is attempting to achieve a modicum of stability and accommodation that will allow it to remove its troops, has implications far beyond that particular conflict itself. When the US stands, as it often does, with Israel but against the entire international community on matters of human rights (as it did in regards to apartheid South Africa and support for the “contras” in Nicaragua, among others), its isolation is highlighted, rather than its leadership. All of its other slogans, such as “spreading freedom and democracy,” are rendered hollow. Neither America nor its erstwhile ally Israel can avoid accountability for their policies and actions. Realpolitik cannot replace a policy based on human rights. If the US wishes to rejoin the international community and genuinely pursue its interests, there is no better place to start than by carving out a foreign policy based on justice. Until then, America remains part of the problem, not the solution.

Jeff Halper is the Director of the Israeli Committee Against House Demolitions (ICAHD).

Gaza Freedom March

Jeff Halper, ICAHD: “The Road from Gaza and Nablus Leads to Your Door”
Joseph Massad, Columbia University: “Oslo and the End of Palestinian Independence”
Ann Wright, CODEPINK: “Gaza War Crimes”
and Palestinian-American Poet Remi Kanazi

7pm Tuesday October 27 @ the Church of the Holy Trinity, 316 East 88th, NYC (Parish hall between 1st and 2nd Aves.)

A $10 drawing will be held for one round trip airplane ticket to the Gaza Freedom March

Admission at the door: $20 – $10 sliding scale, Students $5 No one turned away.
All funds to benefit the Gaza Freedom March and ICAHD-USA

Endorsed by: Adalah-NY, Brooklyn For Peace, Code Pink NYC, Committee for Open Discussion of Zionism, ICAHD-USA, Jewish Voice for Peace, Jews Say No!, NY Community of Muslim Progressives, Veterans for Peace Chapter 34, WESPAC, Women in Black

Almost a decade ago I wrote an article describing Israel’s “matrix of control” over the Occupied Palestinian Territories. It consisted then of three interlocking systems: military administration of much of the West Bank and incessant army and air force intrusions elsewhere; a skein of “facts on the ground,” notably settlements in the West Bank, Gaza and East Jerusalem, but also bypass roads connecting the settlements to Israel proper; and administrative measures like house demolitions and deportations. I argued in 2000 that unless this matrix was dismantled, the occupation would not be ended and a two-state solution could not be achieved.

Since then the occupation has grown immeasurably stronger and more entrenched. The first decade of the twenty-first century has so far seen the steady constricting and fragmentation of Palestinian territory through still more wholesale expropriation of Palestinian land, checkpoints and other physical restrictions on freedom of movement, settlement construction, more and more massive highways intended for Israeli settlers, control over natural resources and, most visibly of all, the erection of the separation barrier in the West Bank and East Jerusalem. Since December 2000, according to the Israeli human rights organization B’tselem, the settler population of the West Bank has grown by 86,000 and that of East Jerusalem by 50,000. Gaza was evacuated of settlers and soldiers in 2005, but Israel retains near complete control over egress and exit of people and goods to and from the coastal strip, regularly cuts supplies of fuel and other necessities to punish the residents and mounts military incursions at will. All the Palestinian territories are subject, to one degree or another, to the measures of house demolitions, “closures” that halt economic activity, administrative restrictions on movement, deportation, induced out-migration and much more.

Indeed, the matrix has reconfigured the country to such an extent that today it seems impossible to detach a truly sovereign and viable Palestinian state from an Israel that has expanded all the way to the Jordan River. Anyone familiar with Israel’s “facts on the ground,” perhaps first and foremost the settlers, would reach the conclusion that, in fact, the matrix cannot be taken apart in a piecemeal fashion, leaving a few settlements here, a road there and an Israeli “greater” Jerusalem in the middle. The matrix has become far too intricate. Dismantling it piece by piece, with Israel stalling by arguing for the security function of each “fact on the ground,” would be a frustrating series of confrontations that would eventually exhaust itself. The only way to a genuine two-state solution and not a cosmetic form of apartheid is to cut the Gordian knot. The international community, led by the United States, must tell Israel that the occupation must be ended entirely. Israel must leave every inch of the Occupied Territories. Period.

And now, at this critical juncture, as the two-state solution for the Israeli-Palestinian impasse disappears under the weight of Israeli settlements, there is a great imponderable: Is President Barack Obama genuinely serious about reaching such a solution or is he merely going through the motions familiar from previous administrations? 

The Tea Leaves
Many Palestinian, Israeli and international proponents of a just peace took heart in Obama’s early gestures. Beginning with the appointment of former Sen. George Mitchell as special envoy and continuing through the president’s June 4, 2009 speech in Cairo, these proponents allowed themselves, after years of disappointment and struggle, a cautious hopefulness. Some of the speech’s formulations, like the nods to the “pain of dislocation” felt by Palestinians and the “daily humiliations” of occupation, had been heard before. But one sentence had not been: Obama said that a two-state solution “is in Israel’s interest, Palestine’s interest, America’s interest and the world’s interest.” Obama seemed to “get it,” that is, he seemed to understand that the US is isolated politically by its unquestioning backing of Israel, which is seen as obstructing a solution to the conflict. And, for the first time, a US president actually said that resolving the Israeli-Palestinian conflict is in the vital national interest, not just a nice thing to do. These words significantly raise the bar. Framing the conflict in this way makes it easier for the administration to win Congressional support for tougher demands upon Israel while undermining the ability of the American Israel Public Affairs Committee (AIPAC) to mount an effective resistance, given American Jewish sensibilities about suspicions of dual loyalty.

Since the Cairo speech, however, fundamental doubts about US efforts have resurfaced. The only demand made by Obama upon Israel has been for a settlement “freeze,” a welcome symbolic gesture, to be sure, yet irrelevant to any peace process. Israel has enough settlement-cities in strategic “blocs” that it could in fact freeze all construction without compromising its control over the West Bank and “greater” Jerusalem, the Arab areas to the north, south and east of the city where Israel has planted its flag. Focusing on this one issue — which, months later, is still being haggled over — has provided Israel with a smokescreen behind which it can actively and freely pursue more significant and urgent construction that, when completed, will truly render the occupation irreversible. It is rushing to complete the separation barrier, which is already being presented as the new border, replacing the “Green Line,” the pre-June 1967 boundary to which Israel is supposed to withdraw, by the terms of UN Security Council resolutions, but on which even the most ardent two-staters have long since given up. Israel is demolishing homes, expelling Palestinian residents and permitting Jewish settlement throughout East Jerusalem, measurably advancing the “judaization” of the city. It is confiscating vast tracts of land in the West Bank and “greater” Jerusalem and pouring bypass road asphalt at a feverish pace so as to permanently redraw the map. It is laying track on Palestinian land for a light-rail line connecting the West Bank settlement-city of Pisgat Ze’ev to Israel. It is drying up the main agricultural areas of the West Bank, forcing thousands of people off their lands, while instituting visa restrictions that either keep visiting Palestinians and internationals out of the country altogether or limit their movement to the truncated Palestinian enclaves of the West Bank.

“Quiet,” behind-the-scenes diplomacy is surely taking place, but the few details that have emerged are far from reassuring. The State Department has mocked as “fiction” a ten-point document given to the Arab press by Fatah figure Hasan Khreisheh that promises an “international presence” in parts of the West Bank and US backing for a Palestinian state by 2011. The component of this alleged plan that seems more likely is that the US wants a partial freeze on settlement activity from Israel in exchange for a pledge from Washington to push for more stringent sanctions upon Iran for its nuclear research. On August 25, 2009, the Guardian quoted “an official close to the negotiations” saying: “The message is: Iran is an existential threat to Israel; settlements are not.” By all indications, if the Obama administration does present a regional peace plan, which it is expected by many to do around the time of the UN General Assembly meeting on September 20, 2009, it will be nothing more than a “rough draft.” It is no exaggeration to say a two-state solution will rise or fall on the outlines of this draft — and may perhaps fall forever if no concrete plan is presented at all, which is also possible. Although the two-state solution has been eulogized many times in the past, Obama represents a best-case scenario. If he presents, in the end, a disappointing peace plan that offers no genuine breakthrough, then the shift to a one-state solution on the part of the Palestinian people and their international supporters will be inescapable.

Sovereignty and Viability
So how can Obama’s plan be judged if and when it is unveiled? Its chance of success can be predicted by how well it addresses the fundamental needs, grievances and aspirations of the peoples involved. An effective approach to ending the conflict, as opposed to shopworn posturing, rests on at least six elements: national expression for both peoples; economic viability for Palestine; a genuine addressing of the refugee issue; a regional approach; security guarantees; and conformity with human rights norms, international law and UN resolutions.

Israeli Jews and Palestinian Arabs are not simply ethnic groups, like, for example, American Jews or Arab-Americans. They are two peoples who, like national groups everywhere, demand self-determination. This reality actually lends credence to a two-state solution, but only if the Palestinian state is truly sovereign and economically viable. One should not forget that, in the days of apartheid, South Africa established ten “bantustans,” small and impoverished “homelands” on 11 percent of South African land, seemingly to address the demand of the black population for self-determination but actually to ensure a “democracy” for the white population on 89 percent of the country. Israeli Prime Minister Benjamin Netanyahu’s notion that the Palestinians should get “autonomy with certain characteristics of a state” on about 15 percent of historic Palestine — “autonomy plus-independence minus,” as he called it — is reminiscent of apartheid. 

If the Obama administration’s plan does not cut the Gordian knot that is Israel’s matrix of control — something no plan or initiative has yet succeeded in doing — it will simply fail to achieve an equitable two-state solution. Only a complete withdrawal of Israel from all the Occupied Territories and the sharing of Jerusalem with no restrictions on movement can avert a Palestinian bantustan. 

Obama’s plan, like its predecessors, seems destined to leave the major Israeli settlement blocs intact, including those in Palestinian East and “greater” Jerusalem. Even with so-called territorial “swaps,” this measure would significantly compromise the sovereignty and economic viability of a Palestinian state. The area designated on Israeli maps for future expansion of the Ma’ale Adumim settlement reaches to the outskirts of Jericho in the Jordan Valley, while the Ariel bloc already extends between the northern West Bank town of Nablus and points south. Taken together, settlements and the highways that interlink them displace Palestinian passenger and commercial vehicles onto a few narrow routes, while the checkpoints intended to protect the settlers snarl traffic on a predictably unpredictable schedule. And then there is the towering wall. It is not a landscape made for easy economic integration.

Why, then, leave these massive settlements intact? The argument is that their residents would object to the point of a civil war in Israel. This is patent nonsense. True, these settlement blocs contain 85 percent of Israelis living in the Occupied Territories, but these are not the ideological settlers who claim the entire Land of Israel from the Mediterranean Sea to the Jordan River. Instead, they are “normal” Israelis who have been attracted to the settlements by high-quality, affordable housing. They would have no objection to resettling inside Israel on the condition that their living standards do not fall, while the Israeli economy, assisted by international donors, would have no problem footing the bill for this population, about 200,000 in number. Settlements in “greater” Jerusalem, housing another 190,000 Israeli Jews, present no problem whatsoever. Residents are free to stay where they are in a shared and integrated Jerusalem. 

As for the “ideological” settlers of the West Bank, only about 40,000 in number (out of almost six million Jews altogether), they can easily be relocated inside Israel, just as were their counterparts in Gaza. Their relocation will be a test of international assertiveness, of course, because the settlers are able to mobilize the support of the right-wing parties in Israel. Since Israel can make no cogent argument as to the security necessity of these tiny settlements, however, internal opposition will simply have to be overruled; the international community cannot allow such frivolous ideological matters to destabilize the entire global system. If the legitimate concerns of the Israeli public over its security are addressed by the international community, which they can be, there is no compelling reason why Israel should not return to the pre-June 1967 border. In fact, if the Gaza episode indicates anything, it is that the Israeli public is willing to remove settlements if it is convinced that doing so will enhance its security. Reminding Israelis that leaving every inch of the Occupied Territories will still leave them sovereign over a full 78 percent of the country — not a bad deal for what will soon become a minority Jewish population — should seal the deal.

Refugees
The Obama platform, should it see the light of day, will probably also adopt the Israeli position that Palestinian refugees can only be repatriated to the Palestinian state itself, not to their former homes inside Israel. This plank would place a weighty economic burden on that tiny prospective state, since the refugees are, by and large, a traumatized and impoverished population with minimal education and professional skills. Add to that another significant fact: Some 60 percent of the Palestinian population is under the age of 18. A Palestinian state without the ability to employ its people and offer a future to its youth is simply a prison-state. 

Now the need for a viable Palestinian state is recognized and embodied in the “road map,” the peace initiative propagated by President George W. Bush in 2003, and will probably be acknowledged in a plan from Obama as well. Despite its limited size, a RAND Corporation study concluded that such a state is possible, but only if it controls its territory, borders, resources and movement of people and goods. Israel must be made to understand that while it will remain the hegemonic power in the region, its own long-term security depends upon the economic wellbeing of its Palestinian neighbors. 

Eighty percent of the Palestinians are refugees, and half of the Palestinians still live in refugee camps within and around their homeland. Any sustainable peace is dependent upon the just resolution of the refugee issue. Technically, resolving the refugee issue is not especially difficult. The Palestinian negotiators, backed up by the Arab League, have agreed to a “package,” to be mutually agreed upon by Israel and the Palestinians, involving a combination of repatriation in Israel and the Palestinian state, resettlement elsewhere and compensation. 

The “package” must contain, however, two other elements, without which the issue will not be resolved and reconciliation cannot take place. First, Israel must acknowledge the refugees’ right of return; a resolution of the issue cannot depend solely on humanitarian gestures. And Israel must acknowledge its responsibility for driving the refugees from their country. Just as Jews expected Germany to accept responsibility for what it did in the Holocaust (and Israelis criticized the Pope during his summer 2009 visit for not apologizing enough), just as China and South Korea will not close the book on World War II until Japan acknowledges its war crimes, so, too, will the refugee issue continue to fester and frustrate attempts to bring peace to the region until Israel admits its role and asks forgiveness. Genuine peacemaking cannot be confined to technical solutions alone; it must also deal with the wounds caused by the conflict. 

Regional Approach, Security and International Law
Obama’s edge over his predecessors lies in his understanding that the Israeli-Palestinian conflict is part of — and in some ways the symbolic epicenter of — a wider regional problem that extends from the neighboring countries to Iraq, Iran, Afghanistan, Pakistan and, indeed, throughout the entire Muslim world and beyond. This understanding lies behind his framing of the conflict’s persistence as being antithetical to vital US interests, and behind his chief of staff Rahm Emanuel’s statements making a solution for the conflict a virtual precondition for addressing the Iran issue. It is precisely this linkage, long denied by Israel, which insists that the Palestinian issue be handled separately, that the Obama administration seems finally to have embraced. Indeed, even in the confines of the Israeli-Palestinian conflict itself, the key issues – refugees, security, water, economic development and others — are regional in scope. A perfect peace between Israel and Palestine, in which both countries flourish, is not a viable solution for either if they exist as prosperous islands in an impoverished, unstable region.

Israel, of course, has fundamental and legitimate security needs, as do the Palestinians and the other peoples of the region. Unlike Israeli governments, the Israeli peace camp believes that security cannot be addressed in isolation, that Israel will not find peace and security unless it enters into a lasting peace with the Palestinians and achieves a measure of integration into the Middle East region. It certainly rejects the notion that security can be achieved through military means. Israel’s assertion that the security issue be resolved before any political progress can be made is as illogical as it is self-serving. Everyone, the Israeli political establishment and the military together with the peace movement and the Palestinians themselves, knows that terrorism is a symptom that can only be addressed as part of a broader approach to the grievances underlying the conflict. Israel, which also must be held accountable for its use of state terror, cannot be allowed to exploit legitimate security concerns to advance a political agenda of permanent control. 

To the degree that negotiations are entered into, they must have as their terms of reference international law and UN resolutions if the Palestinians are to enjoy even minimal parity with their Israeli interlocutors. The lack of grounding in such principles was the fatal shortcoming of all the preceding attempts to reach an agreement. Once negotiations are based solely on power, the Palestinians lose, the differential being so heavily weighted on the Israeli side, which totally controls Palestinian life and territory. Indeed, a peace agreement rooted in international law and human rights — in short, a just peace — would offer the best prospect of working.

Trump Cards
Put simply, any plan, proposal or initiative for peace in Israel-Palestine must be filtered through the following set of critical questions: Will this plan really end the occupation, or is it merely a subtle cover for control? Does this plan offer a just and sustainable peace or merely an imposed and false quiet? Does this plan offer a Palestinian state that is territorially, politically and economically viable, or merely a prison-state? Does this plan genuinely and justly address the refugee issue? And does this plan offer regional security and development? 

While one may glean optimism from the fact that a US president finally comprehends the need for a comprehensive peace in the Middle East, even if solely for the sake of US interests, it is difficult to be optimistic over the prospects of such a peace. No matter what the plan, Israel will neither cooperate nor negotiate in good faith. A solution will have to be imposed, if not overtly, then in ways that make Israel’s continued hold on the Occupied Territories too costly to sustain. Simply withholding Israel’s privileged access to American military technology and markets, for example, would have that effect. 

Any attempt to pressure Israel, however, will run into a familiar obstacle: Congress, Israel’s trump card in its encounters with the administration. In the case of Obama, Israeli leaders know well that his own party has always been far more “pro-Israel” than the Republicans. Already his loss of momentum after the Cairo address (perhaps related to his difficulties over his health care plan) has emboldened the temporarily cowed AIPAC. In early August, the vaunted lobby produced a letter signed by 71 senators from both parties — led by Sens. Evan Bayh (D-IN) and Jim Risch (R-ID) — telling the president to lay off Israel and place more pressures on the Arab states to “normalize” relations with Israel. Obama had already, in his comments introducing Mitchell as special envoy and subsequently, called for “normalization” simultaneous with Israeli moves to lessen the burdens of occupation, in contravention of the 2002 Arab League peace plan, which proposed that the Arab states establish ties with Israel after withdrawal to the pre-1967 lines. Now AIPAC and its backers in Congress want the administration to push for “normalization” before any Israeli overtures whatsoever. The Netanyahu government has played its part, as well. In August, its ministers, standing on the strategically crucial site of “E-1” between Jerusalem and the settlement of Ma’ale Adumim, vowed that Israel would continue building settlements anywhere it pleases. On September 7, 2009, Israel announced it was beginning work on 500 new apartments in Pisgat Ze’ev and 455 in other West Bank locales. These actions essentially tell Obama to go to hell mere weeks before he is projected to launch his peace initiative. The US replied with an expression of “regret.”

Any plan for Israeli-Palestinian peace that has a hope of succeeding requires both an effective marketing strategy and a level of assertiveness as yet unseen in a US president, excepting, perhaps, Dwight Eisenhower and Jimmy Carter. Obama’s only hope of breaking through the wall of Israeli and Democratic Party resistance is to articulate an approach to peace based on clear and accepted principles anchored in human rights and justice and then framed in terms of US interests. A cold, calculating assessment of US interests would certainly push Obama in this direction. Time will tell, though the limp response to the new settlement construction does not bode well.  

In the meantime, growing opposition to the occupation on the part of the international grassroots is making it increasingly difficult for governments to support Israeli policies. The movement targeting Israel for boycott, divestment and sanctions gains strength by the day, as the Israeli-Palestinian conflict begins to assume the dimensions of the anti-apartheid struggle. But the Palestinians, exhausted and suffering as they may be, possess a trump card of their own. They are the gatekeepers. Until the majority of Palestinians, and not merely political leaders, declare that the conflict is over, the conflict is not over. Until most Palestinians believe it is time to normalize relations with Israel, there will be no normalization. Israel cannot “win” — though it believes it can, which is why it presses ahead to complete the matrix and foreclose the possibility of a viable Palestinian state. The failure of yet another peace initiative will only galvanize international efforts to achieve justice for the Palestinians. Only this time the demand is likely to be for a single binational state, the only alternative that fits the single-state, binational reality that Israel itself has forged in its futile attempt to impose an apartheid regime. 

Jeff Halper is director of the Israeli Committee Against House Demolitions. He can be reached at jeff@icahd.org.