Beyond Occupation , livre ebook

Beyond Occupation

First published 2012 by Pluto Press
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www.plutobooks.com
Distributed in the United States of America exclusively by
Palgrave Macmillan, a division of St. Martin’s Press LLC,
175 Fifth Avenue, New York, NY 10010
Copyright © Virginia Tilley 2012
The right of Virginia Tilley and the individual contributors to be identified as the authors of this work has been asserted by them in accordance with the Copyright, Designs and Patents Act 1988.
British Library Cataloguing in Publication Data
A catalogue record for this book is available from the British Library
ISBN 978 0 7453 3236 9 Hardback
ISBN 978 0 7453 3235 2 Paperback
ISBN 978 1 8496 4743 4 PDF eBook
ISBN 978 1 8496 4745 8 Kindle eBook
ISBN 978 1 8496 4744 1 EPUB eBook
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Contents

Preface
1 Sources of Law and Key Concepts


EXPLORING COLONIALISM AND APARTHEID AS MATTERS OF INTERNATIONAL LAW
SCOPE OF THE STUDY


State versus individual responsibility
Scope of empirical evidence
INTERNATIONAL LAW IN OCCUPIED TERRITORY


International humanitarian law


Defining ‘belligerent occupation’
General provisions of the Fourth Geneva Convention
Human rights law
Prohibition of colonialism in international law


The right to self-determination in international law
The Declaration on Colonialism
The prohibition of apartheid in international law
The legal authority of an ICJ advisory opinion
CONCLUSION
2 The Legal Context in the Occupied Palestinian Territories


INTRODUCTION
THE PALESTINIAN PEOPLE’S RIGHT TO SELF-DETERMINATION


The question of Palestinian statehood
The right of the Palestinian people to self-determination




The legal status of the Palestinians as a people
The territorial substance of Palestinian self-determination
LEGAL STATUS OF THE OPT


The ‘missing reversioner’ argument
East Jerusalem: status as occupied territory
Legal implications of the Oslo Accords




The Oslo Accords and Palestinian governance
The PA and PLO as ‘authorities of the occupied territories’


Continuing occupation of the Gaza Strip
Israeli settlements in the OPT




Status of settlements under international humanitarian law
Legal status of the settlers
The jurisprudence of Israel’s Supreme Court regarding settlements


Prolonged occupation
APPLICATION OF ISRAELI LAW IN THE OPT


Israeli laws governing settlements and settlers




Discriminatory application of Israeli civil legislation to Israeli settlers
Discrimination in the adjudication of rights


Application of military legislation to Palestinians




Military legislation applying to Palestinians
Enforcement by military courts
Inadmissibility of discrimination based on citizenship
CONCLUSION
3 Review of Israeli Practices Relative to the Prohibition of Colonialism


INTRODUCTION
REVIEW OF ISRAEL’S PRACTICES IN THE OPT RELATIVE TO COLONIALISM


Violations of territorial integrity
Supplanting institutions of governance


Altering the laws in place in the occupied territory
Extraterritorial application of Israeli civil law to Jews in the OPT
Subjecting the local population to foreign administration
Preventing the local population from exercising political authority
Economic integration


Israeli practices breaching the prohibition on economic integration
Examples of integration: value-added tax and electricity grids
Violation of permanent sovereignty over natural resources


The right to water
Water rights and allocations in the OPT
Impact of the Oslo Accords on water allocation and control
Impact of the Wall on Palestinian access to water
Suppression of Palestinian culture
THE PRINCIPLE OF GOOD FAITH AND THE DUTY NOT TO FRUSTRATE
CONCLUSION
4 Review of Israeli Practices Relative to the Prohibition of Apartheid


INTRODUCTION: DEFINING APARTHEID IN INTERNATIONAL LAW
Part I: Applicability of the Definition to this Case
RACE AND RACIAL DISCRIMINATION IN INTERNATIONAL LAW


The politics of racial terminology in South Africa
Interpreting identity: the International Criminal Tribunals
Race and identity in the OPT


Jewish identity
Jewish national identity: Israel as a Jewish state
Palestinian identity under the terms of ICERD
Inadmissibility of discrimination based on citizenship
Domination as the purpose of policy
APPLICATION OF THE APARTHEID CONVENTION OUTSIDE SOUTHERN AFRICA
APARTHEID IN SOUTH AFRICA: LEGISLATIVE FOUNDATIONS
Part II: Review of Israeli Practices in the OPT
INTRODUCTION
ARTICLE 2(a)(i) – DENIAL OF RIGHT TO LIFE BY MURDER OF MEMBERS OF A RACIAL GROUP


Interpretation
Practices in apartheid South Africa
Israeli practices in the OPT
ARTICLE 2(a)(ii) – DENIAL OF RIGHT TO LIFE AND LIBERTY OF PERSON BY SUBJECTION TO TORTURE OR TO CRUEL, INHUMAN OR DEGRADING TREATMENT OR PUNISHMENT


Interpretation
Practices in apartheid South Africa
Israeli practices in the OPT
ARTICLE 2(a)(iii) – DENIAL OF RIGHT TO LIBERTY OF PERSON BY ARBITRARY ARREST AND ILLEGAL IMPRISONMENT OF MEMBERS OF A RACIAL GROUP


Interpretation
Practices in apartheid South Africa
Israeli practices in the OPT


Administrative detention in the OPT
Incompatibility of Israel’s practice with international law
Israel’s discriminatory use of administrative detention
ARTICLE 2(b) – IMPOSITION ON A RACIAL GROUP OF LIVING CONDITIONS CALCULATED TO CAUSE ITS PHYSICAL DESTRUCTION IN WHOLE OR IN PART
ARTICLE 2(c) – ANY LEGISLATIVE MEASURES AND OTHER MEASURES CALCULATED TO PREVENT A RACIAL GROUP OR GROUPS FROM PARTICIPATION IN THE POLITICAL, SOCIAL, ECONOMIC AND CULTURAL LIFE OF THE COUNTRY AND THE DELIBERATE CREATION OF CONDITIONS PREVENTING THE FULL DEVELOPMENT OF SUCH A GROUP OR GROUPS, IN PARTICULAR BY DENYING TO MEMBERS OF A RACIAL GROUP OR GROUPS BASIC HUMAN RIGHTS AND FREEDOMS, …


Article 2(c)(1) – Denial of the right to freedom of movement


Interpretation
Practices in apartheid South Africa
Israeli practices in the OPT




Visible infrastructure: checkpoints, the Wall and separate roads
The permit regime
Case study of an apartheid policy: the Seam Zone
Access to Jerusalem and the closure of the Gaza Strip
Denial of the right to freedom of residence


Interpretation
Practices in apartheid South Africa
Israeli practices in the OPT




Family unification
Denial of the right to leave and to return to one’s country


Interpretation
Practices in apartheid South Africa
Israeli practices in the OPT
Denial of the right to a nationality


Interpretation
Practices in apartheid South Africa
Israeli practices in the OPT
Denial of the right to work


Interpretation
Practices in apartheid South Africa
Israeli practices in the OPT




Labour and the economy in the OPT
Impact of movement restrictions on Palestinian labour
Restrictions on access to jobs in East Jerusalem and Israel
Restriction of imports and exports
Denial of the right to form recognised trade unions


Interpretation
Practices in apartheid South Africa
Israeli practices in the OPT
Denial of the right to education


Interpretation
Practices in apartheid South Africa
Israeli practices in the OPT




School closures and attacks
Restrictions on movement
Prevention of Palestinian students from studying abroad
Discrimination in East Jerusalem
Denial of the right to freedom of opinion and expression


Interpretation
Practices in apartheid South Africa
Israeli practices in the OPT




Censorship
Restrictions on freedom of movement


Intimidation, harassment, and targeting of media installations and journalists
Denial of the right to freedom of peaceful assembly and association


Interpretation
Practices in apartheid South Africa
Israeli practices in the OPT
Case study: impact of combined practices in the Gaza Strip
Overview
Initial phase of the siege, June 2007–08
Aftermath of ‘Operation Cast Lead’
ARTICLE 2(d) – MEASURES DESIGNED TO DIVIDE THE POPULATION ALONG RACIAL LINES BY THE CREATION OF SEPARATE RESERVES AND GHETTOS FOR THE MEMBERS OF A RACIAL GROUP OR GROUPS, THE PROHIBITION OF MIXED MARRIAGES AMONG MEMBERS OF VARIOUS RACIAL GROUPS, THE EXPROPRIATION OF LANDED PROPERTY BELONGING TO A RACIAL GROUP OR GROUPS OR TO MEMBERS THEREOF


Creation of separate reserves and ghettos


Interpretation
Practices in apartheid South Africa
Israeli practices in the OPT
Prohibition of mixed marriages


Practices in apartheid South Africa
Israeli practices in the OPT
Expropriation of landed property


Interpretation
Practices in apartheid South Africa
Israeli practices in the OPT
ARTICLE 2(e) – EXPLOITATION OF THE LABOUR OF THE MEMBERS OF A RACIAL GROUP


Interpretation
Practices in apartheid South Africa
Israeli practices in the OPT
ARTICLE 2(f) – PERSECUTION OF ORGANISATIONS AND PERSONS, BY DEPRIVING THEM OF FUNDAMENTAL RIGHTS AND FREEDOMS, BECAUSE THEY OPPOSE APARTHEID


Interpretation
Practices in apartheid South Africa
Israeli practices in the OPT
CONCLUSION
5 Conclusion – Legal Implications


SUMMARY FINDINGS
CRIMINAL RESPONSIBILITY OF INDIVIDUALS AND STATES
RESPONSIBILITY OF THIRD-PARTY STATES
RESPONSIBILITY OF INTERNATIONAL ORGA