“Do you support the violent dispossession of me and my family?” replied Mohammed El-Kurd when asked by a CNN reporter whether he supports some of the protests in support of residents of Sheikh Jarrah that have turned violent. El-Kurd is one of several Palestinians facing the risk of forcible dispossession of their homes in Sheikh Jarrah.
Thousands of Palestinians have been injured and many killed as a result of violence at Al-Aqsa mosque and Israeli airstrikes in Gaza. Despite Israel agreeing to a ceasefire, human rights violations against the Palestinian people continue. Human Rights Watch (HRW) has found that Israel is committing two crimes against humanity in the Occupied Palestinian Territories (OPT): apartheid and persecution. These findings are discussed in a 213-page report titled “A Threshold Crossed: Israeli Authorities and the Crimes of Apartheid and Persecution’” published in April 2021.
This article seeks to summarise the legal arguments made in the HRW report and provide contextual background to the violence unfolding in the OPT. Overall, this discussion demonstrates how Israel’s actions violate international law.
THE OCCUPIED PALESTINIAN TERRITORIES
The OPT refers to the territories illegally occupied by Israel since 1967. This comprises of the West Bank, including East Jerusalem, and the Gaza Strip. Israel unilaterally annexed East Jerusalem in 1967. However, as HRW’s report makes it clear, East Jerusalem is still considered an occupied territory under international law. Further, despite Israel unilaterally withdrawing from the Gaza Strip in 2005, it still controls most of its borders, including its airspace and territorial waters.
APARTHEID AND PERSECUTION
HRW’s report recognises that while the term “apartheid” is historically associated with segregationist policies in South Africa from 1948 until the 1990s, HRW refers to Israel’s policies constituting “apartheid” from an international law perspective. These arguments have been raised against Israel for a long time. When the Knesset, Israel’s parliament, passed its Nation-State Law in 2018, declaring Israel as the “nation-state of the Jewish people,” Arab Parliamentary members ripped up copies of the bill, whilst shouting “apartheid”. The law also declared the right to self-determination within Israel, being “unique to the Jewish people.”
In 2020, an Israeli human rights organisation, Yesh Din, concluded in a legal opinion that Israel was an "apartheid state," where the "perpetrators are Israelis, and the victims are Palestinians". Unlike the HRW report, Yesh Din's analysis was restricted to Israel's illegal occupation of the West Bank, which was described as a "gargantuan colonization project". Later that same year, Israel’s proposal to annex parts of the West Bank and Jordan Valley was labelled a “21st century apartheid” in a statement signed by forty-seven independent Special Procedures mandates appointed by the UN Human Rights Council.
THE HRW REPORT
In the report, HRW considers Palestinians as a protected group within the meaning of international law provisions. For instance, the prohibition on racial discrimination within the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD) has been interpreted to apply to distinctions based on national or ethnic origin as well.
The definition of an “apartheid state” does not currently exist in international law, though the crime of apartheid is considered a crime against humanity. The definition of the latter prohibition is enshrined by International Convention on the Suppression and Punishment of the Crime of Apartheid of 1943 (Apartheid Convention) and the Rome Statute of the International Criminal Court (ICC) of 1998 (Rome Statute).
The HRW report confirms that according to these instruments, the crime of apartheid consists of three key elements: an intent to maintain a system of domination by one racial group over another, systematic oppression by one racial group over another, and one or more inhumane acts as part of that oppression
Based on its research, HRW concluded that all three conditions were satisfied in the case of Israel. Firstly, the Israeli government showed an intent to maintain “the domination of Jewish Israelis over Palestinians across Israel and the OPT”. Secondly, “systematic oppression” of Palestinians has been demonstrated through Israel’s discriminatory policies against the Palestinians. Finally, the inhumane acts committed against the Palestinians are well-documented. According to the report, some of these include, subjecting Palestinians to “sweeping restrictions on movement” and the confiscation of land in the West Bank.
The report also opined that Israeli authorities have committed the crime against humanity that is persecution. According to article 7(2)(g) of the Rome Statute, this involves “the intentional and severe deprivation of fundamental rights...by reason of the identity of the group,” including on racial, national, or ethnic grounds. One example cited was that of the discriminatory “widespread confiscation of privately owned land”, such as that attempted in Sheikh Jarrah.
The state of Palestine is a state party to both the Apartheid Convention and the Rome Statute, while Israel is not a state party to either. However, in February 2021, the ICC ruled that it has jurisdiction to investigate alleged war crimes committed in the OPT, including East Jerusalem, since June 2014. Further, crimes against humanity are considered ‘jus cogens’, meaning that they have a peremptory - or superior - status. According to article 53 of the Vienna Convention, states are not permitted to derogate from these provisions and must ensure that they comply with their obligations. Dugards and Reynolds agree that the prohibition of apartheid has peremptory status by discussing how it is present within UN efforts that aim to eradicate “all forms of racial discrimination.” Israel is therefore in grave and serious breach of international law provisions.
SHEIKH JARRAH
Sheikh Jarrah is a Palestinian neighbourhood located in East Jerusalem. It has been under illegal Israeli occupation since 1967. Israeli laws including the Absentee Property Law of 1950 and the Legal and Administrative Matters Law of 1970 are discriminatory as they provide the framework for only Jews to claim land they believe was owned by Jews before 1948. No such equivalent right is given to Palestinians.
Since 1972, Jewish settler organisations have been filing lawsuits against Palestinians in Sheikh Jarrah, arguing that Jews originally owned the land in question. In 2002, 43 Palestinians were forced out of their homes in Sheikh Jarrah. In 2009, 53 Palestinian refugees - including 20 children - were also forced out of Sheikh Jarrah, and their properties were given to an Israeli settler organisation. More families were forcibly dispossessed of their homes in 2008 and 2017. Since 2020, Israeli courts have forcibly ordered 13 Palestinian families to leave their homes. On the 9 May 2021, Israel’s Supreme Court postponed the hearings of several Palestinian families facing forcible dispossession of their homes and is due to set a new date within 30 days.
Article 49 of the Fourth Geneva Convention prohibits an occupying power from transferring its civilian population into territory under its occupation. The HRW report details how Israel’s settlements in the West Bank and parts of East Jerusalem violate this Convention. Similarly, Amnesty International have previously said that Israel’s illegal settlements breach the Convention. Commenting on Palestinians facing dispossessions in Sheikh Jarrah, a spokesperson for the Office of the United Nations High Commissioner for Human Rights (OHCHR) also stated that this violates the Convention as it may lead to “forcible transfer”. Many argue that Israel’s forcible transfers of Palestinians is reminiscent of imperial confiscations. For example, organisations such as the Black Lives Matter movement have published several statements in solidarity with the Palestinians in Sheikh Jarrah and the West Bank, calling for an end to “settler colonialism”.
AL-AQSA
Palestinians from across the OPT protested against the forcible dispossessions in Sheikh Jarrah, and carried out sit-ins in the Al Aqsa compound.
Al-Aqsa Mosque is located in the Old City of Jerusalem, which is legally part of East Jerusalem. It is considered the third holiest site in Islam. On 8 May 2021, Israeli police stormed into Al-Aqsa mosque where thousands of Palestinians were praying on the last Friday of the Muslim holy month of Ramadan. The Israeli police fired 40mm kinetic impact projectiles (KIPs) - also known as rubber coated metal bullets - inside the mosque at worshippers. KIPs are capable of causing blindness, permanent disability, and even death. The police argued that they employed force in response to Palestinian protestors who were throwing rocks, fireworks and objects such as bottles.
Amnesty International has stated that the Israeli police’s response was “disproportionate” and “unlawful”. At least 178 Palestinians and six officers were injured. The Palestinian Red Crescent reported that 88 Palestinians were injured after being hit with the KIPs.
THE SECOND AL-AQSA ATTACK
On 10 May, Israeli police stormed into Al-Aqsa mosque for a second time, firing tear gas and stun grenades into the crowds of worshippers. This led to more than 300 Palestinian protestors being injured and the hospitalisation of at least 250 Palestinians, according to Amnesty International. Eyewitnesses also reported that the Israeli police locked the doors of Al-Aqsa mosque, which led to the worshippers being trapped inside, unable to seek medical assistance.
GAZA ATTACKS
Hamas, a Palestinian militant group, warned that they would retaliate if Israel continued to attack Al-Aqsa mosque. Following the second attack by Israeli forces on Al-Aqsa, Hamas launched retaliatory rockets into Israel. In response, Israel conducted airstrikes in Gaza, resulting in the worst violence in the Gaza Strip since 2014.
Between the 10 and 16 May 2021, more than 145 Palestinians, including 41 children were killed in the Gaza Strip. At least 10 people, including two children, have died in Israel.
CEASEFIRE
Israel and Hamas announced a ceasefire on 20 May 2021, to come into force during the early hours of 21 May 2021. A mere 12 hours following Israel’s announcement of the ceasefire, Israeli forces fired stun grenades and tear gas at Palestinians after the Friday prayer at Al-Aqsa mosque. This illustrated the reality of what a “ceasefire” would mean for Palestinians. While Palestinians supported the ceasefire, as it meant the end to aerial bombardments, many have voiced that a ceasefire does not mean an end to Israel’s illegal occupation. Noura Erakat, a Palestinian human rights attorney, tweeted that “there is no adequate ceasefire that does not lift the siege on Gaza as a bare, bare minimum”.
WHERE DO WE GO FROM HERE?
The latest footage of violence in the OPT may have captured the world’s attention on social media, but Israel’s actions have long violated international law, as shown by the HRW report.
Ardi Imseis, professor of international law and former UN legal advisor, has argued that Israel’s occupation of the OPT is illegal due to the systematic violation of three ‘jus cogens’ norms. Imseis states that these include: the prohibition on the acquisition of territory by force, respecting the right of self-determination, and refraining from “imposing regimes of alien subjugation, domination, and exploitation which includes racial discrimination.
While he looks to the International Court of Justice (ICJ) to determine the illegality of Israel’s occupation, Imseis recognises that an advisory opinion from the court would not be binding and hence cannot end the occupation. Thus, the international community must play a role in advocating for Palestinian's right to self-determination. The US provides $3.8bn every year in military funding to Israel. This funding is being used to maintain an illegal occupation and fuels these continued violations of international law. As a permanent member of the Security Council, the US is in a powerful position to influence justice for Palestinians, yet it has repeatedly chosen to block resolutions that condemn Israel’s actions.
The international community has a responsibility to condemn crimes of apartheid and persecution. Israel’s actions are a clear violation of international law, and the world must advocate for justice on behalf of the Palestinian people.
Ayesha is a LLB student at the University of Leeds. As an aspiring barrister, she enjoys advocacy and has spoken at platforms including Tedx and GESF. She has a key interest in both Public and International law. She is also founder of a student-led initiative 'COSMOS' that organises projects to promote the UN Sustainable Development Goals.