NEWS & VIEWS

Cementing Israeli Apartheid

Grotius – Center for International Law and Human Rights

News Update

23 November 2019

 

Cementing Israel’s Apartheid: Pompeo’s Legalization of Israeli Settlements in the occupied Palestinian territories

 

On 18 November 2019 United States Secretary of State Mike Pompeo announced on behalf of the Trump administration that “the establishment of Israeli settlements in the West Bank is not per se inconsistent with international law”.[1] Pompeo also considered that dwelling on legal issues did not advance peace between Israel and the Palestinians advocating a negotiated resolution for this conflict. Although Pompeo did not say it explicitly, his statement means that Israel has a legal right to build settlements in the occupied Palestinian territories (East Jerusalem, West bank, and Gaza).

 

The Trump administration’s position is inconsistent with the international community’s overwhelming consensus which considers the establishment of Israeli settlements in the 1967 occupied Palestinian territories as a violation of international law. The International Court of Justice in its 2004 Advisory Opinion on Israel’s construction of a wall in the occupied territories determined that:

"Israeli settlements in the Occupied Palestinian Territory (including East Jerusalem) have been established in breach of international law."[2]

 

United Nations international law authorities, U.N. Secretary Generals, the U.N. General Assembly, and the U.N. Security Council have consistently pronounced this basic legal position. Denunciations of Israel’s attempts to confiscate land in occupied East Jerusalem commenced in 1967/68: U.N. Security Council resolution 252 of 21 May 1968. One U.N. Security Council resolution (478 of 20 August 1980) declared Israeli Basic Law: Jerusalem Capital of Israel as a violation of international law, null, and void:

"Determines that all legislative and administrative measures and actions taken by Israel, the occupying Power, which have altered or purported to alter the character and status of the Holy City of Jerusalem, and in particular the recent "basic law" on Jerusalem, are null and void and must be rescinded forthwith;

 

Affirms also that this action constitutes a serious obstruction to achieving a comprehensive, just and lasting peace in the Middle East;

 

Decides not to recognize the "basic law" and such other actions by Israel that, as a result of this law, seek to alter the character and status of Jerusalem,"     

 

In his briefing Pompeo alleged that the issue of Israeli settlements in the occupied Palestinian territories had been a contentious one between Democratic and Republican administrations, and that the Trump administration favors the Reagan administration’s approach. However, the Reagan administration did not oppose the condemnation of Israel’s 1981 annexation of a 1967 occupied territory, the Syrian Golan Heights (U.N. Security Council resolution 497 of 17 December 1981), and suspended a strategic pact and arms deal with Israel protesting the country’s conduct.[3] Trump proclaimed the Golan an Israeli territory in flagrant violation of basic norms of customary international law. In addition, former U.S. Secretary of State James Baker who served during the Republican administration of George H. W. Bush said in a 2017 CNN interview that abstaining at the U.N. Security Council was a long-standing U.S. policy of critiquing Israeli settlements adding that:

"Now, the reason I think settlements are a bad idea is that it -- they tend to create facts on the ground which prohibit or prevent negotiating the status of that particular land according to the land for peace provisions and requirements of U.N. Resolution 242 and 338. And if you create facts on the ground, there's nothing really then left to discuss about trading land for peace. And so, I don't think there's anything unusual about this…You cannot be Israel's lawyer and expect to solve the Palestinian-Israeli dispute. ”[4]

 

Most importantly, international law norms are not confined to the realm of national American politics that on this issue often reflect the disproportionate influence of lobbying groups such as The American Israel Public Affair Committee.[5]

 

But, it is questionable whether demonstrating the factual and legal fallacies of the Trump administration could be of any help. An administration headed by a president who has been described as “the most thoroughly and comprehensively corrupt individual who has ever been elected president” [6] and who invokes an extremely broad interpretation of his constitutional authorities in the United States should not be considered as one pursuing peace in the Middle East or elsewhere. The fact that this administration is financially backed by ardent supporters of Israel, and the specific issue of Israel / occupied Palestinian territories has been dealt with by officials passionate about the construction of Israeli settlements further undermines the credibility of American foreign policy.

 

Casino mogul Sheldon Adelson, the owner of Netanyahu backing free Israeli daily newspaper Yisrael Hayom is a major donor to the Republican party and to Trump presidential campaign specifically.[7] Another important donor for the Republican party, including potential financier for Pompeo’s national political aspirations and supporter of Israeli settlements is Ronald Lauder, the President of the World Jewish Congress.[8] He has described Trump as “a man of intelligence”,[9] in contrast to many who have served with Trump, including the Vice President.[10]

 

The American Ambassador to Israel, David Friedman, endorses Israeli settlements and has lived in as well as raised money for one: Beit El. [11] Similar tendencies have persisted among Trump’s son in law Jared Kushner,[12] and former Special Representative for International Negotiations Jason Greenblatt.[13] The three had been tasked to form a peace plan for the Israel – occupied Palestinian territories issue that failed to gain any genuine legitimacy in the region.   

 

The Trump administration’s advocacy for Israel has exceeded the familiar American one stemming from a military alliance between the two countries. This administration has cut humanitarian aid to Palestinian civilians seeking political concessions.[14] It also recognized Jerusalem as the capital of Israel in violation of international law and relocated the American embassy from Tel-Aviv to Jerusalem contrary to overwhelming global practice. [15]

 

Since 1967 Israel has applied a strict military rule in Gaza, the West Bank and East Jerusalem. The 1993 Oslo process between Israel and the Palestine Liberation Organization created a Palestinian Authority on small parts of the West Bank and Gaza, enjoying limited powers with no sovereignty, and under absolute Israeli control and domination. Israel’s 2005 unilateral withdrawal from Gaza did not end its effective control over that area and the country remains an occupying power also there.

 

The construction of settlements is one important dimension of Israel’s illegal conduct among many. Exclusively Israeli Jewish, constantly expanding, absorbing much of the natural resources,[16] and protected by the Israeli military the settlements serve to form Palestinian Bantustans similar to those created during the apartheid era of South Africa.[17]

 

Throughout the military occupation years, Israel has enforced brutal policies against the Palestinian civilian population that included mass killings, political and other targeted assassinations, systematic torture, concerted administrative and arbitrary detentions, collective punishment, home demolitions, and war crimes. These practices have generally benefited from the legitimizing effect of Israel’s legal system (military and civilian).[18] International law authority John Dugard who served as a special U.N. rapporteur for the human rights condition in the occupied Palestinian territories (2001 – 2008) concluded:

“On the basis of the systemic and institutionalized nature of the racial domination that exists, there are indeed strong grounds to conclude that a system of apartheid has developed in the occupied Palestinian territory. Israeli practices in the occupied territory are not only reminiscent of – and, in some cases, worse than – apartheid as it existed in South Africa, but are in breach of the legal prohibition of apartheid.”[19]

 

The Trump administration’s legalization of Israeli settlements which have been constructed consistently since 1967 by consecutive Labor/Kadima and Likud governments has crystallized what for Palestinians (in Israel [20] and the occupied territories [21]) has been obvious for many years: Israel’s apartheid and Jewish supremacy, the country’s rejection of peace, and the futility of the two states solution.

 

For additional information, please contact:

Marwan Dalal, Executive Director

 

End Notes    

[1] U.S. Reverses 41-Year Old Policy on Israeli Settlements, C-Span, 18 November 2019,  https://www.c-span.org/video/?c4831012/us-reverses-41-year-policy-israeli-settlements

[2] ICJ Advisory Opinion, Legal Consequences of the Construction a Wall in the Occupied Palestinian Territory, 9 July 2004, para.120.

[3] Bernard Gwertzman, “U.S. Suspends Strategic Pact and Arms Deal with Israel Over Annexation of Golan”, New York Times, 19 December 1981; David Shipler, “U.S.-Israel War of Words”, New York Times, 22 December 1981.

[4] Interview with James Baker, CNN, 8 January 2017, http://transcripts.cnn.com/TRANSCRIPTS/1701/08/fzgps.01.html

[5] John Mearsheimer & Stephen Walt, “The Israel Lobby and U.S. Foreign Policy”, New York Times, 23 September 2007; George Soros, “On Israel, America, and AIPAC”, New York Review of Books, 12 April 2007; Mark Horowitz, “The Case for AIPAC”, New York Times, 22 March 2019.

[6] Peter Wehner, “The Full – Spectrum Corruption of Donald Trump”, New York Times, 25 August 2018.

[7] Sheldon G. Adelson, “I endorse Donald Trump for president”, Washington Post, 13 May 2016; Jonathan Martin, “Sheldon Adelson Is Poised to Give Donald Trump a Donation Boost”, New York Times, 13 May 2016; Jason Zengerle, “Sheldon Adelson is Ready to Buy the Presidency”, New York Magazine, 9 September 2015.

[8] Maggie Haberman et al, “Pompeo Fuels Further Talk of Senate Race”, New York Times, 21 August 2019.

[9] JTA, “Ron Lauder praises Trump as ‘man of intelligence’”, Times of Israel, 9 January 2018.

[10] Anonymous, “I Am Part of the Resistance Inside the Trump Administration”, New York Times, 5 September 2018; Anonymous, A Warning (Brown Book Group, 2019).

[11] Ron Kampeas, “Charity headed by US envoy to Israel gave money to far-right Jewish group”, Times of Israel, 11 May 208; Alon Bernstein, “In Beit El, Trump’s Israel envoy pick a well-known figure” Times of Israel, 17 February 2017; Isabel Kershenr, “Israeli Settlement Sees Friendly Faces in Trump Administration”, New York Times, 15 February 2017.

[12] Jodi Kantor, “For Kushner, Israel Policy May Be Shaped by the Personal”, New York Times, 11 February 2017; Jesse Drucker, “Kushner’s Financial Ties to Israel Deepen Even With Mideast Diplomatic Role”, New York Times, 7 January 2018.

[13] Jason Greenblatt, “Trump gets it right on Jerusalem”, CNN, 29 June 2016; Jeremy Diamond, “Trump peace plan author: ’I haven’t found anything to criticize Israel over”, CNN, 26 June 2019.

[14] Jeremy W. Peters, “Sheldon Adelson Sees a Lot to Like in Trump’s Washington”, New York Times, 22 September 2018; [1] Colum Lunch, “Trump Administration Seeks to Withhold Millions in Aid to Palestinians”, Foreign Policy, 10 August 2018; Gardiner Harris, “Trump Administration Cuts More Than $200 Million in Aid for Palestinians”, New York Times, 24 August 2018; Edward Wong, “Trump Administration’s Move to Cut Aid to Palestinian Refugees Is Denounced”, New York Times, 31 August 2018; Editorial Board, “A Vengeful and Shortsighted Act”, New York Times, 31 August 2018; Edward Wong, “U.S. Is Ending Final Source of Aid for Palestinian Civilians”, New York Times, 14 September 2018; Isabel Kershner, “Palestinians Blast Trump’s Aid Cut as Political ‘Blackmail’, New York Times, 25 August 2018; Mark Landler, “Kushner Says Punishing Palestinians Won’t Hurt Chance for Peace Deal”, New York Times, 13 September 2018.

[15] “Jerusalem: Trump move prompts negative world reaction”, BBC, 7 December 2017.

[16] HRW, Separate and Unequal: Israel’s Discriminatory Treatment of Palestinians in the Occupied Palestinian Territories, 2010; OCHA, The Humanitarian Impact on Palestinians of Israeli Settlements and other Infrastructure in the West Bank (July 2007).

[17] Leila Farsakh, “Independence, Cantons, or Bantustans: Whither the Palestinian State?” 59(2) Middle East Journal, pp.230-245 (2005); Edward Said, “The One – State Solution”, New York Times, 10 January 1999, https://www.nytimes.com/1999/01/10/magazine/the-one-state-solution.html

[18] Lisa Hajjar, Courting Conflict – The Israeli Military Court System in the West bank and Gaza (University of California Press, 2005); Marwan Dalal, Trump’s Promised Land: Israel’ Apartheid against the Palestinians (Grotius -  Center for International Law and human Rights, 2019).

[19] John Dugard & John Reynolds, “Apartheid, International Law, and the Occupied Palestinian Territory”, 24(3) EJIL, pp.867-913, 912 (2013).

[20] Elia Zureik, The Palestinians in Israel – A Study in Internal Colonialism (Routledge, 1979); Nadim Rouhana, Palestinian Citizens in an Ethnic Jewish State (Yale University Press, 1997); Ilan Pappe, The Forgotten Palestinians: A History of the Palestinians in Israel (Yale University Press, 2011).

[21] Raja Shehadeh, Strangers in the House – Coming of Age in Occupied Palestine (Steerforth Press, 2002); Omar Barghouti et al, The case for Sanctions Against Israel (Verso, 2012).