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Beyond Occupation: Apartheid, Colonialism and International Law in the Occupied Palestinian Territories
Beyond Occupation looks at three contentious terms that regularly arise in contemporary arguments about Israel's practices towards Palestinians in the occupied territories – occupation, colonialism and apartheid – and considers whether their meanings in international law truly apply to Israel's policies. This analysis is timely and urgent – colonialism and apartheid are serious breaches of human rights law and apartheid is a crime against humanity under the Rome Statute of the International Criminal Court.
The contributors present conclusive evidence that Israel’s administration of the Palestinian territories is consistent with colonialism and apartheid, as these regimes are defined in human rights law. Their analysis further shows that these practices are deliberate Israeli state policies, imposed on the Palestinian civilian population under military occupation.
These findings raise serious implications for the legality and legitimacy of Israel's continuing occupation of the Palestinian territories and the responsibility of the entire international community to challenge practices considered contrary to fundamental values of the international legal order.
The contributors present conclusive evidence that Israel’s administration of the Palestinian territories is consistent with colonialism and apartheid, as these regimes are defined in human rights law. Their analysis further shows that these practices are deliberate Israeli state policies, imposed on the Palestinian civilian population under military occupation.
These findings raise serious implications for the legality and legitimacy of Israel's continuing occupation of the Palestinian territories and the responsibility of the entire international community to challenge practices considered contrary to fundamental values of the international legal order.
346 pages, Kindle Edition
First published September 6, 2012
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About the author
Virginia Q. Tilley
7 books2 followersVirginia Tilley (1953-) is an American political scientist specializing in the comparative study of ethnic and racial conflict. She is Professor of Political Science at Southern Illinois University-Carbondale in the US.
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July 2, 2017
The authors of this impressive piece of international legal analysis are suitably self-deprecating; their opening sentence is: “Some readers, picking up this book and finding it to be an analysis of the Israeli-Palestinian conflict from the perspective of international law, might well be tempted to put it back down.” (p.xi) This self-deprecation is not, however, the product of any perception of international law as dense, dry, difficult or in some way inaccessible, but because the conflict has seemed more impervious than most to “the norms and rules of international law” – so their point is not that we, readers, might find this difficult or hard to get into, but that a legal intervention is likely to be ignored by key parties in the dispute. It should not be. This is a close read, well-argued case that in its domination of the Occupied Palestinian Territories Israel (OPT) is in violation of international law covering both colonialism and apartheid.
Both terms get thrown around, a lot, in discussions of Israel and especially but not only of its role in the OPT. Most analyses of the situation of the Palestinian people recognise the three elements of the population: those in exile, those living under occupation in Gaza and the West Bank and those Palestinian citizens of Israel. This analysis specifically and explicitly deals only with the OPT – the West Bank and Gaza. Like all good pieces of legal writing, it is clear, careful, meticulous and rigorous; unlike many pieces of legal writing it is conservative in its deployment and utilisation of the law.
After two chapters outlining the bases of the legal analysis, including key distinctions between human and humanitarian rights, and the circumstances of the law in OPT including the legal status of the OPT, the authors build their case around two principal bases: international law relating to colonialism, and international law relating to apartheid. For the discussion of colonialism, the primary source is the 1960 Declaration on the Granting of Independence to Colonial Peoples and Territories along with the Fourth Geneva Convention. The apartheid discussion is built on the back of International Convention on the Suppression and Punishment of the Crime of Apartheid (1973) as well as the International Convention on the Elimination of All Forms of Racial Discrimination.
In building their case, the authors need to grapple with key concerns including the applicability of the terms of the Apartheid Convention, the extent to with Jews and Palestinians in Israel and the OPT fit the definition of ‘race’ in these conventions and whether Israel is colonising the West Bank and Gaza, taking account for such provisions as the Oslo Accords in 1996 that allowed for limited Palestinian self-government and the 2005 decision to ‘disengage’ from Gaza. None of these is a simple or straightforward answer, and as is the case in many legal discussions the answers not necessarily simple to discern. For instance, Israel is without doubt a ‘belligerent occupier’ of the OPT (the Israeli courts even use the term) which in international law has very specific meanings, but the powers of belligerent occupiers are limited in ways that are designed to prevent occupation becoming colonisation. Equally, the Apartheid Convention was designed in relation to South Africa (but crucially in its language does not limit itself to that country and its social & political régime until 1993).
In the substantive chapters dealing with colonialism and with apartheid the authors then work meticulously through the provisions of the various conventions that define colonialism and apartheid, noting that in the case of apartheid the legal instruments referring to inhuman acts identify indicative, not exhaustive or exclusive acts, and point to apartheid as a system, not a series of individual acts. That said, in line with their conservative practice, they limit themselves to only those acts identified in the Convention. In the apartheid chapter each ‘inhuman act’ is explored through a legal definition, a sketch of the South African situation (where there is an annoying tendency to equate the liberation movements with the ANC only) and then a more detailed exploration of the situation in the OPT: it is classic form comparative legal analysis. In both cases, they find that in respect of the OPT Israel is violating international law in respect of colonialism and apartheid. They make no comment on the situation in Israel (that is, within the so-called Green Line), and there is no suggestion that either of these provisions relates to Palestinians in exile.
Even so, the implications of this argument are profound, but as they also note it is an argument that has not been upheld by any court. These implications include a suggestion that the UN General Assembly should ask the International Court of Justice for an Advisory Opinion (in effect a judgement). More significantly, the authors note that if their analysis is upheld by the courts, all other nations have a legal obligation to prevent the continuation of both colonialism and apartheid and to take active steps to bring about their termination; in international law doing nothing about colonialism or about apartheid is complicity.
Readers might be tempted to put aside this book – not only because international law is so often ignored in the Israel-Palestine conflict, but because international law can also be quite dry – but anyone with an interest in the conflict, in the situation in Israel-Palestine should resist that temptation. This is a powerful case against the occupation, and one that cuts through the obfuscation that results from the sometimes sloppy use of the terms colonialism and apartheid in respect of the OPT and from the tendency of apologists for the occupation to deploy obfuscatory legal arguments (or simply deny the truth of those arguments). It certainly isn’t an easy read, but it is careful, conservative and meticulous, and essential for those with an interest in the area.
Both terms get thrown around, a lot, in discussions of Israel and especially but not only of its role in the OPT. Most analyses of the situation of the Palestinian people recognise the three elements of the population: those in exile, those living under occupation in Gaza and the West Bank and those Palestinian citizens of Israel. This analysis specifically and explicitly deals only with the OPT – the West Bank and Gaza. Like all good pieces of legal writing, it is clear, careful, meticulous and rigorous; unlike many pieces of legal writing it is conservative in its deployment and utilisation of the law.
After two chapters outlining the bases of the legal analysis, including key distinctions between human and humanitarian rights, and the circumstances of the law in OPT including the legal status of the OPT, the authors build their case around two principal bases: international law relating to colonialism, and international law relating to apartheid. For the discussion of colonialism, the primary source is the 1960 Declaration on the Granting of Independence to Colonial Peoples and Territories along with the Fourth Geneva Convention. The apartheid discussion is built on the back of International Convention on the Suppression and Punishment of the Crime of Apartheid (1973) as well as the International Convention on the Elimination of All Forms of Racial Discrimination.
In building their case, the authors need to grapple with key concerns including the applicability of the terms of the Apartheid Convention, the extent to with Jews and Palestinians in Israel and the OPT fit the definition of ‘race’ in these conventions and whether Israel is colonising the West Bank and Gaza, taking account for such provisions as the Oslo Accords in 1996 that allowed for limited Palestinian self-government and the 2005 decision to ‘disengage’ from Gaza. None of these is a simple or straightforward answer, and as is the case in many legal discussions the answers not necessarily simple to discern. For instance, Israel is without doubt a ‘belligerent occupier’ of the OPT (the Israeli courts even use the term) which in international law has very specific meanings, but the powers of belligerent occupiers are limited in ways that are designed to prevent occupation becoming colonisation. Equally, the Apartheid Convention was designed in relation to South Africa (but crucially in its language does not limit itself to that country and its social & political régime until 1993).
In the substantive chapters dealing with colonialism and with apartheid the authors then work meticulously through the provisions of the various conventions that define colonialism and apartheid, noting that in the case of apartheid the legal instruments referring to inhuman acts identify indicative, not exhaustive or exclusive acts, and point to apartheid as a system, not a series of individual acts. That said, in line with their conservative practice, they limit themselves to only those acts identified in the Convention. In the apartheid chapter each ‘inhuman act’ is explored through a legal definition, a sketch of the South African situation (where there is an annoying tendency to equate the liberation movements with the ANC only) and then a more detailed exploration of the situation in the OPT: it is classic form comparative legal analysis. In both cases, they find that in respect of the OPT Israel is violating international law in respect of colonialism and apartheid. They make no comment on the situation in Israel (that is, within the so-called Green Line), and there is no suggestion that either of these provisions relates to Palestinians in exile.
Even so, the implications of this argument are profound, but as they also note it is an argument that has not been upheld by any court. These implications include a suggestion that the UN General Assembly should ask the International Court of Justice for an Advisory Opinion (in effect a judgement). More significantly, the authors note that if their analysis is upheld by the courts, all other nations have a legal obligation to prevent the continuation of both colonialism and apartheid and to take active steps to bring about their termination; in international law doing nothing about colonialism or about apartheid is complicity.
Readers might be tempted to put aside this book – not only because international law is so often ignored in the Israel-Palestine conflict, but because international law can also be quite dry – but anyone with an interest in the conflict, in the situation in Israel-Palestine should resist that temptation. This is a powerful case against the occupation, and one that cuts through the obfuscation that results from the sometimes sloppy use of the terms colonialism and apartheid in respect of the OPT and from the tendency of apologists for the occupation to deploy obfuscatory legal arguments (or simply deny the truth of those arguments). It certainly isn’t an easy read, but it is careful, conservative and meticulous, and essential for those with an interest in the area.
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