Law, Ethics, Politics and Israel: The Case for Disengagement

Law, Ethics, Politics and Israel: The Case for DisengagementBy Kader Asmal
The Phoenix [20_05_2010]

In 1980, I was asked by Séan MacBride to serve on a commission of enquiry into reported violations of international law by Israel following Israel’s invasion of Lebanon which brought the aggressor to the gates of Beirut.

There were five of us in the field as it were, led by the distinguished international lawyer, Richard Falk of Princeton.  We spent 22 days in Lebanon, Israel and the surrounding areas.  The devastation in Lebanon was quite overwhelming, the rural areas looked like a Dali-landscape with tree stumps, and in urban areas, hulks of buildings left.  Bombings were carried on while we were there; whole new flats in the famous Corniche in Beirut were destroyed simply because they were there.  The noise, the dust and the sound of bullets were ceaseless.

And then, after our preliminary work had been done, there was the Sabra and Shatila massacres of defenceless refugees, hundreds and hundreds were shot dead by the Israeli surrogates, the Phalange.  The PLO had been expelled from Lebanon.

Amid all this carnage and suffering, it may appear as slightly specious for me to refer especially to the dynamiting of an orphanage.  But the destruction of the orphanage, resonates with the cold calculated dismissal by Golda Meir of Palestinians: there is no thing as a Palestinian.

So, the first and possibly the most advanced children’s care centre in the Middle East which we had visited and marveled at was blown up as the Israeli ‘Defence’ Force retracted from the outskirts of Beirut.

If there were no Palestinians, no people with any identity or separate personality, the visible signs of such people had to be destroyed, as with the famous Palestine Library in Beirut and the hospital records in the West Bank.  So, the infamous Zionist slogan of a people without land and a land with no people had by the annexations of 1967 become a land with non-people.

Actually, this is not so far-fetched.  One of the most moving experiences while we were in Israel was to meet Israel Shihack, head of an Israeli civil liberties body.  It was he who drew my attention to the denaturalisation of Africans when each Bantustan was set up.  He said: ‘You see, the West Bank and Gaza are our Bantustans; reserves of labour for Israel but no freedom of labour.’

Three of the five commissioners were international lawyers.  So our report had to deal systematically with violations of international law.

Yet, the first part of the report began with the following paragraph.

            It is easy to become cynical about the relevance of law to the

conduct of war.  Our sensibilities are now flooded with images

of massacres and atrocities committed in the name of this or

that cause.  These most gross, barbaric features of warfare, as

present in modern lives as in ancient, remind us also that

international society lacks any consistent means of law

enforcement.  When it comes to war the attempt to have

law without government often means, indeed, like grasping at


We are no longer grasping at straws.  To have law on our side was to legitimise our struggle and begin the long Prometheus-like push to delegitimise the apartheid regime in which we succeeded and, with Israel, we shall succeed if we have the determination and pertinacity as we showed over apartheid.

Palestinians have been betrayed by those who believe in the legal system that holds the world together and who use it to justify their role elsewhere, as in Iraq but not in Palestine.  They have been betrayed by their neighbours whose peace that has been bought from Israel is not dissimilar to the thirteen pieces of silver given to Judas.

Others, like the European Union with the EU-Israel Association Agreement grant Israel the enormous advantage of preferential trading status with enormous financial benefits, together with the billions of US dollar ‘aid’ allows Israel to have the most technologically advanced army and counter-intelligence agency in the world.

It is time to delegitimise this entity that perpetrates nightmarish control over the alienation of people.  As Professor Falk has argued, ‘[T]he essence of this legitimacy war is to cast doubt on several dimensions of Israel’s legitimacy, its status as a moral and law abiding factor, as an occupying power in relation to the Palestinian people, and with respect to its willingness to respect the United Nations and to abide by international law.’

In 1947, the UN allowed Israel to carve out its viable State often through violence.  In 1948, the apartheid-racist Afrikaners came into power in South Africa.  The Afrikaners who tried to exclude Jews before the war from settling in South Africa as they were fleeing the Nazi pogroms were able to make common cause with Israel with ease.

The architect of apartheid and subsequently the Prime Minister, Hendrik Verwoerd sharply made the point about their respective provenance

‘The Jews took Israel from the Arabs after the Arabs had lived there for a thousand years.  Israel, like South Africa, is an apartheid state’.

I do not recall any protests from Israel about this appalling comparison.  On the contrary, a partnership began which was to last until 1994 based on ideology and practical co-operation, from the development of nuclear weapons, to rocket technology and to assistance in busting the arms and economic boycotts.

And yet, for many years, supporters of Israel refused to accept the resemblance, if not the total similarity between the two occupiers in their laws and practices.  In apartheid South Africa, there were over 100 laws which discriminated against the majority blacks, from the cradle to the grave and which provided for a monopoly of power for the whites.  The theory and practice of apartheid was characterized by the United Nations as a crime against humanity.  The International Court of Justice, the most senior legal body in the world, opined that an official policy of racial discrimination was not only criminal under international law but constitutes as an example of jus cogens the highest law from which no state could derogate and which gave rise to universal jurisdiction, that is, any state could charge and try perpetrators of apartheid, i.e. which this Court described as an official policy of racial discrimination.

We spent many trying to isolate South Africa, following a call from the liberation movement of South Africa, the African National Congress.  From a single act of international boycotting of South African goods, the campaign embraced a world-wide call for state ordained boycotts; embodying military, economic, sporting, academic and cultural sanctions.

The campaigns stirred the conscience of the world.  In Ireland the work of the anti-apartheid movement permeated all sections of society, from trade unions, to schools, to churches, to universities and in the end, to voters, so that the Irish Government had to act in the 80s to ban the importation of fruit and vegetables in order to end the strike by nine working class young people who refused to handle South African goods.

The pressure on apartheid South Africa was intense.  Together with the international resistance and a modest recourse to armed struggle, the apartheid regime of de Klerk was forced to negotiate and in 1994, following the first democratic election, Nelson Mandela was elected as president of a free South Africa.

So what do we find in Israel?

Non-jewish nationals have no right to return.  Non-jews are severely restricted in owning land in Israel and in the Occupied Territories.  There is no freedom of movement for Palestinians.  Palestinians can lose their residence rights for the slightest reason.  There is no right to assembly without the permission of the police.

Thus Israel as the occupying power, have appropriated nearly 30% of the West Bank, and destroyed the cohesiveness of East Jerusalem by wide-ranging building of Israeli homes.

International conventions, rules of customary law and the precepts of all democratic states identify equality and freedom as the preferred virtues of a democratic order.  Every tenet of freedom and equality is violated by Israel, not only in the occupied territories but also in relation to their attitude to Palestine.

So what Verwoerd said in 1961 became even truer after 1967 when Israel seized and occupied the West Bank, East Jerusalem and Gaza.  In violation of the 4th Geneva Convention, Israel established throughout the West Bank and East Jerusalem, today home to nearly half a million settlers who are subject to Israeli and not Palestinian law. Special ‘Israeli only’ roads join these settlements together and to Israel. There are more than 600 checkpoints in the West Bank, where Palestinians need identity cards to travel from one village to another. Israel has imposed a matrix of controls which surpasses the restrictions once imposed by South Africa's Apartheid regime on that country's black population. With the construction of its Apartheid Wall deemed illegal by the International Court of Justice in 2004. Israel has not alone annexed a further 10% of the best Palestinian land, but has divided the West Bank into increasingly watertight ghettoes that make the South African Bantustans seem like oases of viable entities.

Everyone knew the purpose of the wall.  It is a pity that Irish and European companies helped to build it.

A look at a map of the West Bank reveals that in reality it is now part of greater Israel. There are two classes of people living in this territory: one is the Jew who has rights and privileges, and the other the non-Jew who has neither. This is apartheid, and has been identified as such by the former US President Jimmy Carter among others.

Given that the world and its peoples worked together to help bring apartheid to an end, why do they allow its persistence in Israel/Palestine?

The USA perceives Israel as a strategic ally. Furthermore, the Israeli lobby is by far the most powerful on Capitol Hill.

The EU is paralysed by the genocide committed against Europe's Jews in the 1930s/1940s. This turns the Palestinians into scapegoats for Europe's past crimes, while equating the Israeli state with the Jewish people, many of whom worldwide passionately oppose its policies.

With no external pressure to conclude a peace agreement with the Palestinians, domestic pressure in Israel for peace has largely become muted. With the Palestinians locked behind the Apartheid Wall and within the besieged Gaza enclave, few Israelis are concerned about a genuine peace process.

Would the Apartheid regime of South Africa have renounced its privileges without the pressure of boycotts and sanctions?  I believe not.  Similarly Israel will not voluntarily relinquish control of the Palestinian territories, extend equal rights to Palestinian citizens of Israel, and negotiate a just resolution to all outstanding issues between itself and its neighbours as long as there are no negative consequences for maintaining the status quo.

Every time that an opportunity for negotiations arises, Israel derails it by perpetrating some provocative act of violence or announcing the further construction of illegal housing on stolen Palestinian land.

The most recent unrestrained violence was occurred out in December 2008 -January 2009 on the population of Gaza by the Israeli military (Operation Cast Lead). When the onslaught finished, over 1,400 Palestinians civilians were dead including 116 women and 313 children. In total 13 Israelis were killed comprising 10 Israelis soldiers (4 killed by friendly fire) and 3 civilians.

At no time in the history of apartheid, did the racists us the tactics of the Israelis – aerial strafing of built up areas; tanks and cannon against houses; destruction of water and sanitation works

In addition to the fatalities and injuries, tens of thousands of Palestinians were left homeless. Afterwards Israel continued to tighten the illegal blockade on Gaza that had already been in place since June 2007, thus preventing assistance being rendered to the casualties of the war, and the importation of materials for rebuilding Gaza's infrastructure.

Nearly 20 000 Palestinians from the West Bank and Gaze are in Israel’s prisons.

In April 2009 the United Nations Human Rights Commission (UNHRC) established an independent international fact-finding mission to investigate violations of international human rights law and international humanitarian law during Operation Cast Lead. This was led by a respected international legal expert, Richard Goldstone, a former member of the South African Constitutional Court and chief prosecutor with the International Criminal Tribunals for Rwanda and the former Yugoslavia, and a Trustee of the Hebrew University of Jerusalem.

In September 2009 the Goldstone Report was released.  It had an immediate impact and accused both the Israeli Defence Forces and Palestinian militants of war crimes and possible crimes against humanity. The report recommended that Israel and Hamas should carry out independent and credible investigations into these allegations, and that the allegations should be brought to the International Criminal Court should they fail to do so. The Israeli government rejected the report's findings whereas Hamas first rejected and then embraced it.

The most damning of all the Report's findings is paragraph 1886 of its conclusions:

"the Mission recognises that not all deaths constitute violations of international humanitarian law. The principle of proportionality acknowledges that, under certain strict conditions, actions resulting in the loss of civilian life may not be unlawful. What makes the application and assessment of proportionality difficult in respect of many of the events investigated by the Mission is that deeds by the Israeli armed forces and words of military and political leaders prior to and during the operations indicate that, as a whole, they were premised on a deliberate policy of disproportionate force aimed not at the enemy but at the 'supporting infrastructure'. In practice, this appears to have meant the civilian population.”

In effect, serious war crimes and crimes against humanity had been committed.

In October 2009 UN General Assembly endorsed Goldstone's findings, as did the EU Parliament on 10th March 2010. On 22nd March the EU Foreign Affairs Council voted to enhance the EU/Israel Association agreement providing Israel with even more favourable trading conditions. It would appear that when there is a contest in EU policy between human rights and economic benefit, human rights will invariably come off worse. Yet the

EU recently cancelled a trade agreement with Sri Lanka on human rights grounds! The only logical conclusion is that Israel has impunity because of Europe's past crimes. The moral question remains: Why must the Palestinian people pay with their lives and freedom to ease the consciences of Europeans?

As Justice Richard Goldstone said at the publication of his mission's report in Geneva on 29 September 2009:

‘Now is the time for action. A culture of impunity in the region has existed for too long. The lack of accountability for war crimes and possible crimes against humanity has reached a crisis point; the ongoing lack of justice is undermining any hope for a successful peace process and reinforcing an environment that fosters violence. Time and again, experience has taught us that overlooking justice only leads to increased conflict and violence.’

So now, we must campaign on behalf of the ‘legitimacy war’, which is to cast doubt on several dimensions of Israel’s legitimacy, its status as a moral and law abiding actor as an occupying power in relation to the Palestinian people, and with respect to its willingness to respect the UN and abide by international law.

No more impunity.

Israel’s leaders must be held accountable before our courts on the basis of universal jurisdiction.

The Goldstein report lends weight to calls around the world to disrupt normal relations with Israel, by boycotting cultural and academic activities, by disrupting trade relations through disinvestment moves or through refusing to load and unload ships and planes carrying cargo to or from Israel, and by pressurising governments to impose economic sanctions.

It is up to all of us dedicated to peace and justice to do all we can to help the Palestinians prevail in the legitimacy war and bring their long ordeal to an end.

Kader Asmal taught law at TCD for 27 years, was founder and chairman of the Irish Anti-Apartheid Movement, returned to SA in 1990 to participate in the making of SA’s constitution, became a Minister under Nelson Mandela, then Minister of Education. He retired from Parliament in 2007.