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Elements of the Definition of Apartheid: An Institutionalized Regime of Systematic Domination

Elements of the Definition of Apartheid: An Institutionalized Regime of Systematic Domination Joseph Schechla Coordinator , Housing and Land Rights Network, Habitat International Coalition 5 November 2011. Israeli Parastatal Institutions: WZO/JA and JNF. Parastatal “national” institutions.

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Elements of the Definition of Apartheid: An Institutionalized Regime of Systematic Domination

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  1. Elements of the Definition of Apartheid: An Institutionalized Regime of Systematic Domination Joseph Schechla Coordinator, Housing and Land Rights Network, Habitat International Coalition 5 November 2011

  2. Israeli Parastatal Institutions: WZO/JA and JNF

  3. Parastatal “national” institutions World Zionist Organization (1897) Jewish Agency (1929) “agricultural colonization based on Jewish labour” “it shall be deemed to be a matter of principle that Jewish labour shall be employed” “redeeming” “inalienable” land

  4. World Zionist Organization / Jewish Agency Constitution: Article 2: “The Zionist Program was defined by the First Zionist Congress in Basle as follows: • `The aim of Zionism is to create for the Jewish people a home in Eretz Israel secured by public law’." Article 2.A: “Zionism is a movement which adheres to the basic principles of justice, equality and democracy and which rejects discrimination based on origin, nationality or race.” (1986) Zionist General Council: • Members of the Zionist Executive • One representative each of Jewish Colonial Trust, of the Keren Kayemeth LeIsrael and the Keren Hayesod-United Israel Appeal • President of the Zionist Supreme Court and the Attorney of the World Zionist Organization • Former WZO presidents, representative of other Zionist bodies and movements

  5. Sister Organizations Jewish National Fund (1901) United Israel Appeal (1920)

  6. Jewish National Fund • Memorandum of Association, Article 3(a): “To purchase, acquire on lease, or in exchange, or receive on lease or otherwise, lands, forests, rights of possession, easements and any similar rights, as well as immovable properties of any class…for the purpose of settling Jews on such lands and properties.” • Article 3(c): to “benefit, whether directly or indirectly, to those of Jewish race or descendency” • Article 3(g): “…promote the interests of Jews in the prescribed region.” • Article 6: “upon dissolution…any properties whatsoever…shall be transferred to the Government of Israel.”

  7. Jewish National Fund • Article 7 and Article of the Association of Keren Kayemeth leIsrael 2, 3, & 4: “The members of the General Council of the World Zionist Organization [or replacement] shall be deemed members of the Association.” • Forming an agency of the State of Israel under “Covenant between the Government of Israel and the Zionist Executive” (1952) “Keren Kayemeth le-Israel Law” (1953)

  8. Institutionalized Discrimination NO Israeli nationality status Citizenship or “Jewish nationality”

  9. Tamarin v. Ministry of Interior (1971) • Petition to High Court of Israel to register nationality as “Israeli,” instead of “Jewish” • The Court ruled: “there is no Israeli nation separate from the Jewish nation...composed not only of those residing in Israel but also of Diaspora Jewry.” • Justice Shimon Agranat explained: acknowledging a uniform Israeli nationality “would negate the very foundation upon which the State of Israel was formed.” • Nationality status in Israel is not linked to origin from, or residence in a territory. • The Israeli Law of Citizenship (Ezrahut), mistranslated as “Nationality Law,” only establishes a civil status distinct from—and inferior to—“Jewish nationality.”

  10. “Nationality” versus Citizenship • Law of Return (1950) • Law of Citizenship (1952) • World Zionist Organization-Jewish Agency (Status) Law (1952) • Basic Law: Israel Lands [The People’s Lands] (1960) • Covenant with Zionist Executive (1954, 1971) • Basic Law: The Knesset (1958), Amendment 9 (1985) • Agricultural Settlement Law (1967) • Absentee Property Law (1950) • Keren Kayemet Le-Israel Law (1953)

  11. JNF illegally acquired most of the lands (2,500 km2) of 372 Palestinian villages ethnically cleansed by Zionist forces in 1947-48, demolishing many.

  12. The Palestinian refugees → 2009 approximately 5.5 million.

  13. State of Israel Govt. of Israel WZO/JA & JNF

  14. Meanwhile…extraterritorially American Council for Judaism challenge: “The Department of State recognizes the State of Israel as a sovereign State and citizenship of the State of Israel. It recognizes no other sovereignty or citizenship in connection therewith. It does not recognize a legal-political relationship based upon the religious identification of American citizens. It does not in any way discriminate among American citizens upon the basis of their religion. Accordingly it should be clear that the Department of State does not regard the ‘Jewish people’ concept as a concept of international law.” Phillips Talbot (1964)

  15. “It must be doubted that the same fund-raising institutions can be public and governmental in Israel and private and philanthropic in the United States.” W.T. Mallison American Council for Judaism v. Department of Justice, D.C. Superior Court, 1968

  16. WZO/JA reorganization (1970)“organization of organizations” • The Labor Zionist Movement • Likud (Herut Hatzohar and World Union of General Zionists) • Mizrachi-Hapoel Hamizrachi • The World Confederation of United Zionists (in USA: federation of "Hadassah,“ American Jewish League and Bnei Zion) • Arzenu - The Zionist faction of the Reform Movement. • Mercaz - the Zionist faction of the Conservative Movement. • Mapam • Tnuat H- Hanoar Hazioni, Shinuy, Ratz • Banai (Tehiya, Tzomet) • WIZO • The World Sephardi Federation • B'nai B'rith International • Maccabi World Union • The Student Delegation • The CIS (Commonwealth of Independent States) Delegation • The World Conference of Synagogues and Kehiloth (Orthodox) • The World Council of Synagogues (Conservative) • The World Union for Progressive Judaism (Reform) • The Zionist Council in Israel

  17. Penal Law of Israel (626/1996)Chapter Three: Incidence in Respect of Foreign Offences 13. (a) Israeli penal law shall apply to foreign offences against: (1) the security, foreign relations or secrets of the State; (2) the governmental system of the State; (3) the proper functioning of the authorities of the State; (4) the property and economy of the State and its transport or communication links with other countries; (5) the property, rights and proper functioning of any association or body specified in, or designated under, the provisions of subsection (c).

  18. Penal Law of Israel (626/1996) (c) "Association or body," for the purposes of subsection (a)(6) means: (1) the World Zionist Organization; (2) the Jewish Agency for Eretz-Israel; (3) the Keren Kayemet Le-Israel; (4) the Keren Ha-Yesod - United Israel Appeal; (5) an inspected body, within the meaning of the State Comptroller Law (Consolidated Version), 5718–1958.

  19. A Division of Labour Jewish Agency Jewish National Fund World Zionist Organization

  20. Source: Usama Halabi

  21. World Zionist Organization offices in 16% of the world’s countries

  22. JAFI offices and recruitment centers in 22% of the world’s countries

  23. JNF offices (w US states) in 20% of the world’s countries

  24. Revert to racist classification of Jews; • Claim to act on behalf of all Jews; • Impose “Jewish nationality” on citizens of other countries; • Establish chartered basis for institutionalized discrimination in Israel and Israel-controlled territories; • Manage continuing dispossession of indigenous Palestinians; • Pursue programs contravening international human rights, humanitarian and criminal law; • Meanwhile operate as tax-exempt charities in some 50 countries.

  25. Concluding Observations of the Committee on Economic, Social and Cultural Rights: Israel, E/C.12/1/Add.27, 4 December 1998 10. The Committee expresses concern that excessive emphasis upon the State as a "Jewish State" encourages discrimination and accords a second-class status to its non-Jewish citizens. The Committee notes with concern that the Government of Israel does not accord equal rights to its Arab citizens, although they comprise over 19 per cent of the total population. This discriminatory attitude is apparent in the lower standard of living of Israeli Arabs as a result, inter alia, of lack of access to housing, water, electricity and health care and their lower level of education…

  26. Concluding Observations of the Committee on Economic, Social and Cultural Rights: Israel, E/C.12/1/Add.27, 4 December 1998 11. The Committee notes with grave concern that the Status Law of 1952 authorizes the World Zionist Organization/Jewish Agency and its subsidiaries, including the Jewish National Fund, to control most of the land in Israel, since these institutions are chartered to benefit Jews exclusively. Despite the fact that the institutions are chartered under private law, the State of Israel nevertheless has a decisive influence on their policies and thus remains responsible for their activities. A State party cannot divest itself of its obligations under the Covenant by privatizing governmental functions. The Committee takes the view that large-scale and systematic confiscation of Palestinian land and property by the State and the transfer of that property to these agencies constitute an institutionalized form of discrimination because these agencies by definition would deny the use of these properties to non-Jews. Thus, these practices constitute a breach of Israel's obligations under the Covenant.

  27. Concluding Observations of the Committee on Economic, Social and Cultural Rights: Israel, E/C.12/1/Add.27, 4 December 1998 13. The Committee notes with concern that the Law of Return, which allows any Jew from anywhere in the world to immigrate and thereby virtually automatically enjoy residence and obtain citizenship in Israel, discriminates against Palestinians in the diaspora upon whom the Government of Israel has imposed restrictive requirements which make it almost impossible to return to their land of birth.

  28. Concluding Observations of the Committee on Economic, Social and Cultural Rights: Israel, E/C.12/1/Add.90, 23 May 2003 16. The Committee is deeply concerned about the continuing difference in treatment between Jews and non-Jews, in particular Arab and Bedouin communities, with regard to their enjoyment of economic, social and cultural rights in the State party's territory. The Committee reiterates its concern that the "excessive emphasis upon the State as a 'Jewish State' encourages discrimination and accords a second-class status to its non-Jewish citizens" (ibid., para. 10). This discriminatory attitude is apparent in the continuing lower standard of living of Israeli Arabs as a result… 18. The Committee is particularly concerned about the status of "Jewish nationality," which is a ground for exclusive preferential treatment for persons of Jewish nationality under the Israeli Law of Return, granting them automatic citizenship and financial government benefits, thus resulting in practice in discriminatory treatment against non-Jews, in particular Palestinian refugees.

  29. Concluding Observations of the Committee on the Elimination of Racial Discrimination: Israel, CERD/C/ISR/CO/13, 9 March 2007 14. The Committee, bearing in mind the oral clarification provided by the delegation, notes the absence of information on the ethnic plurality of the Jewish population of Israel, particularly in the context of the Law of Return. The State party is requested to provide information on the ethnic composition of the Jewish population of Israel, in order to enable a full understanding of the implementation of the Convention in the State party’s jurisdiction.

  30. Concluding Observations of the Committee on the Elimination of Racial Discrimination: Israel, CERD/C/ISR/CO/13, 9 March 2007 17. The Committee…notes the statement that the only significant difference regarding the enjoyment of human rights between Jewish nationals and other citizens exists with regard to determining the right to immigrate to Israel according to the Law of Return, and that such preference is made for the purpose of developing the national identity of the State party. The Committee is concerned, however, by reports that such preference is accompanied by other privileges, in particular regarding access to land and benefits. (articles 1, 2 and 5) The Committee recommends that the State party ensure that the definition of Israel as a Jewish nation state does not result, in any systemic distinction, exclusion, restriction or preference based on race, colour, descent, or national or ethnic origin in the enjoyment of human rights. The Committee would welcome receiving more information on how the State party envisages the development of the national identity of all its citizens.

  31. Concluding Observations of the Committee on the Elimination of Racial Discrimination: Israel, CERD/C/ISR/CO/13, 9 March 2007 18. The Committee is concerned about the denial of the right of many Palestinians to return and repossess their land in Israel. (article 5 (d) (ii) and (v)) The Committee reiterates its view expressed in its previous concluding observations on this issue and urges the State party to assure equality in the right to return to one’s country and in the possession of property.

  32. Concluding Observations of the Committee on the Elimination of Racial Discrimination: Israel, CERD/C/ISR/CO/13, 9 March 2007 19. The Committee regrets that it has not received sufficient information from the State party on the status, mandate and responsibility of the World Zionist Organization, the Jewish Agency and the Jewish National Fund, as well as about their budgets and allocation of funds. It is concerned by information according to which these institutions manage land, housing and services exclusively for the Jewish population. (articles 2 and 5) The Committee urges the State party to ensure that these bodies are bound by the principle of nondiscrimination in the exercise of their functions.

  33. Concluding Observations of the Committee on the Elimination of Racial Discrimination: Israel, CERD/C/ISR/CO/13, 9 March 2007 22. The Committee notes with deep concern that separate “sectors” are maintained for Jewish and Arab persons, in particular in the areas of housing and education, and that according to some information, such separation results in unequal treatment and funding. The Committee regrets that information provided by the State party on this matter was not sufficiently detailed. (articles 3, 5 and 7) The Committee recommends that the State party assess the extent to which the maintenance of separate Arab and Jewish “sectors” may amount to racial segregation. The State party should develop and implement policies and projects aimed at avoiding separation of communities, in particular in the areas of housing and education.

  34. International Convention on the Elimination of All Forms of Racial Discrimination Article 3 : States Parties particularly condemn racial segregation and apartheid and undertake to prevent, prohibit and eradicate all practices of this nature in territories under their jurisdiction.

  35. Concluding Observations of the Committee on the Elimination of Racial Discrimination: Israel, CERD/C/ISR/CO/13, 9 March 2007 22. The Committee notes with deep concern that separate “sectors” are maintained for Jewish and Arab persons, in particular in the areas of housing and education, and that according to some information, such separation results in unequal treatment and funding. The Committee regrets that information provided by the State party on this matter was not sufficiently detailed. (articles 3, 5 and 7) The Committee recommends that the State party assess the extent to which the maintenance of separate Arab and Jewish “sectors” may amount to racial segregation. The State party should develop and implement policies and projects aimed at avoiding separation of communities, in particular in the areas of housing and education.

  36. Concluding Observations of the Committee on the Elimination of Racial Discrimination: Israel, CERD/C/ISR/CO/13, 9 March 2007 23. The Committee welcomes the decisions of the Supreme Court in Ka’adan v. The Israel Lands Administration (2000) and Kibbutz Sde‑Nahum et al v. Israel Land Administration et al(2002), in which it ruled that State land should not be allocated on the basis of any discriminatory criteria or to a specific sector. It notes that the Israel Land Administration, as a result, has adopted new admission criteria for all applicants. It remains concerned, however, that the condition that applicants must be “suitable to a small communal regime” may allow, in practice, for the exclusion of Arab Israeli citizens from some State-controlled land. (Articles 2, 3 and 5 (d) and (e) of the Convention) The Committee recommends that the State party take all measures to ensure that State land is allocated without discrimination, direct or indirect, based on race, colour, descent, or national or ethnic origin. The State party should assess the significance and impact of the social suitability criterion in this regard.

  37. Concluding Observations of the Committee on the Elimination of Racial Discrimination: Israel, CERD/C/ISR/CO/13, 9 March 2007 33. The Committee, while noting that the Supreme Court has recommended that the course of the wall be changed to prevent disproportionate harm to specific Palestinian communities, is concerned that the State party has chosen to disregard the 2004 advisory opinion of the International Court of Justice on the legal consequences of the construction of the wall in the Occupied Palestinian Territories. The Committee is of the opinion that the wall and its associated regime raise serious concerns under the Convention, since they gravely infringe a number of human rights of Palestinians residing in the territory occupied by Israel. These infringements cannot be justified by military exigencies or by the requirements of national security or public order. (Articles 2, 3 and 5 of the Convention) The Committee recommends that the State party cease the construction of the wall in the Occupied Palestinian Territories, including in and around East Jerusalem, dismantle the structure therein situated and make reparation for all damage caused by the construction of the wall. The Committee also recommends that the State party take action to give full effect to the 2004 advisory opinion of the International Court of Justice on the legal consequences of the construction of the wall in the Occupied Palestinian Territories.

  38. Concluding Observations of the Committee on the Elimination of Racial Discrimination: Israel, CERD/C/ISR/CO/13, 9 March 2007 34. The Committee is deeply concerned that the severe restrictions on the freedom of movement in the Occupied Palestinian Territories, targeting a particular national or ethnic group, especially through the wall, checkpoints, restricted roads and permit system, have created hardship and have had a highly detrimental impact on the enjoyment of human rights by Palestinians, in particular their rights to freedom of movement, family life, work, education and health. It is also concerned that the Order on Movement and Travel (Restrictions on Travel in an Israeli Vehicle) (Judea and Samaria), of 19 November 2006, which bans Israelis from transporting Palestinians in their vehicles in the West Bank, except in limited circumstances, has been suspended but not cancelled. (Articles 2, 3 and 5 of the Convention) The State party should review these measures to ensure that restrictions on freedom of movement are not systematic but only of temporary and exceptional nature, are not applied in a discriminatory manner, and do not lead to segregation of communities. The State party should ensure that Palestinians enjoy their human rights, in particular their rights to freedom of movement, family life, work, education and health.

  39. Concluding Observations of the Committee on the Elimination of Racial Discrimination: Israel, CERD/C/ISR/CO/13, 9 March 2007 35. The Committee notes with concern the application in the Occupied Palestinian Territories of different laws, policies and practices applied to Palestinians on the one hand, and to Israelis on the other hand. It is concerned, in particular, by information about unequal distribution of water resources to the detriment of Palestinians, about the disproportionate targeting of Palestinians in house demolitions and about the application of different criminal laws leading to prolonged detention and harsher punishments for Palestinians than for Israelis for the same offences. (Articles 2, 3 and 5 of the Convention) The State party should ensure equal access to water resources to all without any discrimination. The Committee also reiterates its call for a halt to the demolition of Arab properties, particularly in East Jerusalem, and for respect for property rights irrespective of the ethnic or national origin of the owner. Although different legal regimes may apply to Israeli citizens living in the Occupied Palestinian Territories and Palestinians, the State party should ensure that the same crime is judged equally, not taking into consideration the citizenship of the perpetrator.

  40. Concluding Observations of the Committee on the Elimination of Racial Discrimination: Israel, CERD/C/ISR/CO/13, 9 March 2007 22. The Committee notes with deep concern that separate “sectors” are maintained for Jewish and Arab persons, in particular in the areas of housing and education, and that according to some information, such separation results in unequal treatment and funding. The Committee regrets that information provided by the State party on this matter was not sufficiently detailed. (articles 3, 5 and 7) The Committee recommends that the State party assess the extent to which the maintenance of separate Arab and Jewish “sectors” may amount to racial segregation. The State party should develop and implement policies and projects aimed at avoiding separation of communities, in particular in the areas of housing and education.

  41. Over-riding principles • Self-determination (Article 1[1]) • Nondiscrimination (Article 2[2]) • Gender equality (Article 3) • Rule of law (Article 2[1]) • Progressive realization (Article 2[1]) • Maximum of available resources (Article 2[1]) • International cooperation (Article 2[1])

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