DAY 208: Angels

March 19th, 2017 § 0 comments § permalink

Briefly interrupting the major programme announced the other day (relaunch the Geneva Convention – still awaiting interest); the blog has to admit to having felt despondent lately. Not merely because of the appalling policies of the British, French and U.S. governments, because of Trump and May and Netanyahu and Erdogan, because of confinement and deportation

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and much else (I’ll get to them); but because your correspondent, he who writes these pages was not feeling a) as well or b) as widely appreciated as he felt he deserved.

The pain in the knee may be palliated; but will it ever go away? Will I ever be able to march from, say, Marble Arch to Trafalgar Square (or even from the Angel to the Screen on the Green) at a reasonable pace, without arousing pity or impatience in those who have to walk beside me? And will I ever land the position of widely respected defender of human rights which I feel I deserve? As I say, these reflections gnaw at the soul and lead to the worst kind of self-pity, always lying in wait.

So today, with a varied but quite unexpected series of human interactions, comes the kind of delight which you certainly can’t plan. Heading for the law centre late and in some depression (lateness was my own stupidity), a friendly young pregnant  lady, seeing that we were both a bit slow, offered me assistance; and as we moseyed along St Peter’s St we exchanged views on our voluntary work (teaching painting as therapy in her case). This encouraging start to the day was improved when I arrived at the law centre to find the staff (me and Behefta, volunteers) were complemented by Natalie, a Zambian Seventh-Day Adventist7thday recently graduated from volunteering.

This led to a day where answering the phone and arranging appointments (for desperate mothers whose benefits had been stopped) with lawyers rather took a back seat to explanations of our beliefs, what we liked eating/were good at cooking, families, children and the usual run of social interaction (Oh I can’t stand olives/avocados! Why? I love them. I’m getting more and more convinced that Jesus is coming in less than ten years, and we shall all be saved. Phew!). There wasn’t really any discussion of the merits of our several religious affiliations; our Muslim went off to pray at lunchtime unshowily without trying to draw the rest of us in.

I’m not proposing this as a way of spending time as a model, but it’s fun while it lasts. As Blake says,

He who binds to himself a joy
Does the winged life destroy;
But he who kisses the joy as it flies
Lives in eternity’s sun rise.

I hope that’s appropriate.  And as a tribute to Chuck Berry, whose death I just learned, here he is, very young, performing ‘Sweet Little Sixteen‘.

I meant to read into the record (as they say) the recent historic ruling in State of Hawai’i and Ismail Elshikh vs. Donald J. Trump et al. in which the said Trump’s ‘Muslim ban’ is put on hold owing to its violation of various parts of the Constitution and its plain religious discrimination. (D.T. of course afterwards said that that was not what he meant to do, but typically he’d made the mistake of earlier having made a number of statements to the effect that it was); but it’s a bit long and you can  find it for yourself.

However, I am taking the opportunity of pasting in (below) the equally historic 6-page executive summary of the UN’s ESCWA report on Israel and the Question of Apartheid, for the good reason that, having already led to rima-khalaf-portraitRima Khalaf’s forced resignation,  it’s quite likely to be withdrawn from the internet. I don’t know if it’ll stay on the blog, but I’m interested.

Palestine and the Israeli Occupation, Issue No. 1

Israeli Practices towards the Palestinian People and the Question of Apartheid

Executive Summary

This report concludes that Israel has established an apartheid regime that dominates the Palestinian people as a whole. Aware of the seriousness of this allegation, the authors of the report conclude that available evidence establishes beyond a reasonable doubt that Israel is guilty of policies and practices that constitute the crime of apartheid as legally defined in instruments of international law.

The analysis in this report rests on the same body of international human rights law and principles that reject anti-Semitism and other racially discriminatory ideologies, including: the Charter of the United Nations (1945), the Universal Declaration of Human Rights (1948), and the International Convention on the Elimination of All Forms of Racial Discrimination (1965). The report relies for its definition of apartheid primarily on article II of the International Convention on the Suppression and Punishment of the Crime of Apartheid (1973, hereinafter the Apartheid Convention):

The term “the crime of apartheid”, which shall include similar policies and practices of racial segregation and discrimination as practiced in southern Africa, shall apply to… inhuman acts committed for the purpose of establishing and maintaining domination by one racial group of persons over any other racial group of persons and systematically oppressing them.

Although the term “apartheid” was originally associated with the specific instance of South Africa, it now represents a species of crime against humanity under customary international law and the Rome Statute of the International Criminal Court, according to which:

“The crime of apartheid” means inhumane acts… committed in the context of an institutionalized regime of systematic oppression and domination by one racial group over any other racial group or groups and committed with the intention of maintaining that regime.

Against that background, this report reflects the expert consensus that the prohibition of apartheid is universally applicable and was not rendered moot by the collapse of apartheid in South Africa and South West Africa (Namibia).

The legal approach to the matter of apartheid adopted by this report should not be confused with usage of the term in popular discourse as an expression of opprobrium. Seeing apartheid as discrete acts and practices (such as the “apartheid wall”), a phenomenon generated by anonymous structural conditions like capitalism (“economic apartheid”), or private social behaviour on the part of certain racial groups towards others (social racism) may have its place in certain contexts. However, this report anchors its definition of apartheid in international law, which carries with it responsibilities for States, as specified in international instruments.

The choice of evidence is guided by the Apartheid Convention, which sets forth that the crime of apartheid consists of discrete inhuman acts, but that such acts acquire the status of crimes against humanity only if they intentionally serve the core purpose of racial domination. The Rome Statute specifies in its definition the presence of an “institutionalized regime” serving the “intention” of racial domination. Since “purpose” and “intention” lie at the core of both definitions, this report examines factors ostensibly separate from the Palestinian dimension — especially, the doctrine of Jewish statehood as expressed in law and the design of Israeli State institutions — to establish beyond doubt the presence of such a core purpose.

That the Israeli regime is designed for this core purpose was found to be evident in the body of laws, only some of which are discussed in the report for reasons of scope. One prominent example is land policy. The Israeli Basic Law (Constitution) mandates that land held by the State of Israel, the Israeli Development Authority or the Jewish National Fund shall not be transferred in any manner, placing its management permanently under their authority. The State Property Law of 1951 provides for the reversion of property (including land) to the State in any area “in which the law of the State of Israel applies”. The Israel Lands Authority (ILA) manages State land, which accounts for 93 per cent of the land within the internationally recognized borders of Israel and is by law closed to use, development or ownership by non-Jews. Those laws reflect the concept of “public purpose” as expressed in the Basic Law. Such laws may be changed by Knesset vote, but the Basic Law: Knesset prohibits any political party from challenging that public purpose. Effectively, Israeli law renders opposition to racial domination illegal.

Demographic engineering is another area of policy serving the purpose of maintaining Israel as a Jewish State. Most well known is Israeli law conferring on Jews worldwide the right to enter Israel and obtain Israeli citizenship regardless of their countries of origin and whether or not they can show links to Israel-Palestine, while withholding any comparable right from Palestinians, including those with documented ancestral homes in the country. The World Zionist Organization and Jewish Agency are vested with legal authority as agencies of the State of Israel to facilitate Jewish immigration and preferentially serve the interests of Jewish citizens in matters ranging from land use to public development planning and other matters

deemed vital to Jewish statehood. Some laws involving demographic engineering are expressed in coded language, such as those that allow Jewish councils to reject applications for residence from Palestinian citizens. Israeli law normally allows spouses of Israeli citizens to relocate to Israel but uniquely prohibits this option in the case of Palestinians from the occupied territory or beyond. On a far larger scale, it is a matter of Israeli policy to reject the return of any Palestinian refugees and exiles (totalling some six million people) to territory under Israeli control.

Two additional attributes of a systematic regime of racial domination must be present to qualify the regime as an instance of apartheid. The first involves the identification of the oppressed persons as belonging to a specific “racial group”. This report accepts the definition of the International Convention on the Elimination of All Forms of Racial Discrimination of “racial discrimination” as “any distinction, exclusion, restriction or preference based on race, colour, descent, or national or ethnic origin which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of human rights and fundamental freedoms in the political, economic, social, cultural or any other field of public life”. On that basis, this report argues that in the geopolitical context of Palestine, Jews and Palestinians can be considered “racial groups”. Furthermore, the International Convention on the Elimination of All Forms of Racial Discrimination is cited expressly in the Apartheid Convention.

The second attribute is the boundary and character of the group or groups involved. The status of the Palestinians as a people entitled to exercise the right of self- determination has been legally settled, most authoritatively by the International Court of Justice (ICJ) in its 2004 advisory opinion on Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory. On that basis, the report examines the treatment by Israel of the Palestinian people as a whole, considering the distinct circumstances of geographic and juridical fragmentation of the Palestinian people as a condition imposed by Israel. (Annex II addresses the issue of a proper identification of the “country” responsible for the denial of Palestinian rights under international law.)

This report finds that the strategic fragmentation of the Palestinian people is the principal method by which Israel imposes an apartheid regime. It first examines how the history of war, partition, de jure and de facto annexation and prolonged occupation in Palestine has led to the Palestinian people being divided into different geographic regions administered by distinct sets of law. This fragmentation operates to stabilize the Israeli regime of racial domination over the Palestinians and to weaken the will and capacity of the Palestinian people to mount a unified and effective resistance. Different methods are deployed depending on where Palestinians live. This is the core means by which Israel enforces apartheid and at the same time impedes international recognition of how the system works as a complementary whole to comprise an apartheid regime.

Since 1967, Palestinians as a people have lived in what the report refers to as four “domains”, in which the fragments of the Palestinian population are ostensibly treated differently but share in common the racial oppression that results from the apartheid regime. Those domains are:

  1. Civil law, with special restrictions, governing Palestinians who live as citizens of Israel;
  2. Permanent residency law governing Palestinians living in the city of Jerusalem;
  3. Military law governing Palestinians, including those in refugee camps, living since 1967 under conditions of belligerent occupation in the West Bank and Gaza Strip;
  4. Policy to preclude the return of Palestinians, whether refugees or exiles, living outside territory under Israel’s control.

Domain 1 embraces about 1.7 million Palestinians who are citizens of Israel. For the first 20 years of the country’s existence, they lived under martial law and to this day are subjected to oppression on the basis of not being Jewish. That policy of domination manifests itself in inferior services, restrictive zoning laws and limited budget allocations made to Palestinian communities; in restrictions on jobs and professional opportunities; and in the mostly segregated landscape in which Jewish and Palestinian citizens of Israel live. Palestinian political parties can campaign for minor reforms and better budgets, but are legally prohibited by the Basic Law from challenging legislation maintaining the racial regime. The policy is reinforced by the implications of the distinction made in Israel between “citizenship” (ezrahut) and “nationality” (le’um): all Israeli citizens enjoy the former, but only Jews enjoy the latter. “National” rights in Israeli law signify Jewish-national rights. The struggle of Palestinian citizens of Israel for equality and civil reforms under Israeli law is thus isolated by the regime from that of Palestinians elsewhere.

Domain 2 covers the approximately 300,000 Palestinians who live in East Jerusalem, who experience discrimination in access to education, health care, employment, residency and building rights. They also suffer from expulsions and home demolitions, which serve the Israeli policy of “demographic balance” in favour of Jewish residents. East Jerusalem Palestinians are classified as permanent residents, which places them in a separate category designed to prevent their demographic and, importantly, electoral weight being added to that of Palestinians citizens in Israel. As permanent residents, they have no legal standing to challenge Israeli law. Moreover, openly identifying with Palestinians in the occupied Palestinian territory politically carries the risk of expulsion to the West Bank and loss of the right even to visit Jerusalem. Thus, the urban epicentre of Palestinian political life is caught inside a legal bubble that curtails its inhabitants’ capacity to oppose the apartheid regime lawfully.

Domain 3 is the system of military law imposed on approximately 6.6 million Palestinians who live in the occupied Palestinian territory, 4.7 million of them in the West Bank and 1.9 million in the Gaza Strip. The territory is administered in a manner that fully meets the definition of apartheid under the Apartheid Convention: except for the provision on genocide, every illustrative “inhuman act” listed in the Convention is routinely and systematically practiced by Israel in the West Bank. Palestinians are governed by military law, while the approximately 350,000 Jewish settlers are governed by Israeli civil law. The racial character of this situation is further confirmed by the fact that all West Bank Jewish settlers enjoy the protections of Israeli civil law on the basis of being Jewish, whether they are Israeli citizens or not. This dual legal system, problematic in itself, is indicative of an apartheid regime when coupled with the racially discriminatory management of land and development administered by Jewish-national institutions, which are charged with administering “State land” in the interest of the Jewish population. In support of the overall findings of this report, annex I sets out in more detail the policies and practices of Israel in the occupied Palestinian territory that constitute violations of article II of the Apartheid Convention.

Domain 4 refers to the millions of Palestinian refugees and involuntary exiles, most of whom live in neighbouring countries. They are prohibited from returning to their homes in Israel and the occupied Palestinian territory. Israel defends its rejection of the Palestinians’ return in frankly racist language: it is alleged that Palestinians constitute a “demographic threat” and that their return would alter the demographic character of Israel to the point of eliminating it as a Jewish State. The refusal of the right of return plays an essential role in the apartheid regime by ensuring that the Palestinian population in Mandate Palestine does not grow to a point that would threaten Israeli military control of the territory and/or provide the demographic leverage for Palestinian citizens of Israel to demand (and obtain) full democratic rights, thereby eliminating the Jewish character of the State of Israel. Although domain 4 is confined to policies denying Palestinians their right of repatriation under international law, it is treated in this report as integral to the system of oppression and domination of the Palestinian people as a whole, given its crucial role in demographic terms in maintaining the apartheid regime.

This report finds that, taken together, the four domains constitute one comprehensive regime developed for the purpose of ensuring the enduring domination over non-Jews in all land exclusively under Israeli control in whatever category. To some degree, the differences in treatment accorded to Palestinians have been provisionally treated as valid by the United Nations, in the absence of an assessment of whether they constitute a form of apartheid. In the light of this report’s findings, this long-standing fragmented international approach may require review.

In the interests of fairness and completeness, the report examines several counter- arguments advanced by Israel and supporters of its policies denying the applicability of the Apartheid Convention to the case of Israel-Palestine. They include claims that: the determination of Israel to remain a Jewish State is consistent with practices of other States, such as France; Israel does not owe Palestinian non-citizens equal treatment with Jews precisely because they are not citizens; and Israeli treatment of the Palestinians reflects no “purpose” or “intent” to dominate, but rather is a temporary state of affairs imposed on Israel by the realities of ongoing conflict and security requirements. The report shows that none of those arguments stands up to examination. A further claim that Israel cannot be considered culpable for crimes of apartheid because Palestinian citizens of Israel have voting rights rests on two errors of legal interpretation: an overly literal comparison with South African apartheid policy and detachment of the question of voting rights from other laws, especially provisions of the Basic Law that prohibit political parties from challenging the Jewish, and hence racial, character of the State.

The report concludes that the weight of the evidence supports beyond a reasonable doubt the proposition that Israel is guilty of imposing an apartheid regime on the Palestinian people, which amounts to the commission of a crime against humanity, the prohibition of which is considered jus cogens in international customary law. The international community, especially the United Nations and its agencies, and Member States, have a legal obligation to act within the limits of their capabilities to prevent and punish instances of apartheid that are responsibly brought to their attention. More specifically, States have a collective duty: (a) not to recognize an apartheid regime as lawful; (b) not to aid or assist a State in maintaining an apartheid regime; and (c) to cooperate with the United Nations and other States in bringing apartheid regimes to an end. Civil society institutions and individuals also have a moral and political duty to use the instruments at their disposal to raise awareness of this ongoing criminal enterprise, and to exert pressure on Israel in order to persuade it to dismantle apartheid structures in compliance with international law. The report ends with general and specific recommendations to the United Nations, national Governments, and civil society and private actors on actions they should take in view of the finding that Israel maintains a regime of apartheid in its exercise of control over the Palestinian people.

DAY 207: 1951

March 11th, 2017 § 0 comments § permalink

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While March 8th (International Women’s Day) was the centenary of the Russian Revolution and has rightly involved us in all sorts of celebrations, I’ve been more recently preoccupied by the 1951 refugee convention, which isn’t currently having an anniversary and which is neglected,  ignored and trampled on by states which have supposedly signed up to it. I recall that the Convention defines a refugee as 

A person who owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who,refugee not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it.’

That is, as I had it explained to me, if you’re a Syrian or an Eritrean and you ‘re in France or the U.K.; and you reasonably don’t want to go back home because you’ll be persecuted there, then you’re a refugee. The countries which signed the Convention (who include the U.K., France, Italy, and many others) agree in principle, then, that if you’re a refugee they won’t send you back; rather, they’ll allow you to settle where you are, work have access to health care and so on.

Reader, that’s what it says, and that’s what we signed up to. It says nothing about the first country you arrived in, or about where your fingerprints were taken – the ‘Dublin III’ stuff . What has that got to do with it? If you’re afraid, you’re afraid, and the duty of (e.g.) the British government is to give you – and probably your family –  a home and a job.How has this country strayed so far from its original principles?

Here’s a recent example from ‘Passeurs d’hospitalités’: the country of arrival – in this case France – rather than accepting the refugee’s ‘justifiable fear of persecution’, finds a convoluted way of sending him back to the country which was persecuting him:’ ‘Hamid’ was arrested in Calais, identified as Sudanese by representatives of the embassy during his administrative detention 437652-france-immigration-detention-centrein the police station at the Calais border, under unclear circumstances. Still, he is not Sudanese, but an Eritrean, who arrived in Sudan at the age of 11.

Since then, he has been locked up in the detention centre of Oissel, near Rouen, with a view to his expulsion to Sudan. He has lost all appeals; the courts rely on his recognition by the Sudanese Embassy, and his asylum claim in detention (a fast-track procedure in a few days, which doesn’t offer the guarantees of a normal procedure) has been rejected. He may therefore be deported to Sudan at any time.

So : mobilize to challenge the decision-makers, and remember that, beyond the  expulsions to Sudan are themselves unacceptable; and this is a precedent for deporting Eritreans who have spent time in Sudan to that country, in the case that the embassy of Eritrea refuses to issue the passes allowing them to expel them directly. Sudan, on the other hand, will deport to Eritrea, which (the U.K. now thinks) is not a ‘safe country’ for deportations. (See UKUT 443 MST, MYK and AA v. SSHD June 2016, – revising the country guidance on Eritrea and high time.)

Just for a moment think of what you would do if you were trying to escape from such a dangerous country -we think naturally of Syria,

aleppo

but there are many many others. How could you even begin to persuade the unwelcoming British authorities of your trauma and terror – probably across a language barrier? They would shelve your problem by locking you up preparatory to finding some other country to dump you in. In fact, what the refugee has most to fear on arrival is the detention centre (or ‘removal centre’ in our new language) -where you are likely to lose all power, in particular to be deprived of access to a lawyer. ‘There are currently nearly 2000 spaces in UK immigration detention centres (now officially called “removal centres”), an increase from 250 spaces a decade ago. Detention is administrative, without statutory limit and those held are not accused of any crime. Asylum seekers and migrants can be detained at any stage of their claim to remain in the UK – on arrival, with appeals outstanding and prior to removal. The decision to detain is made by an individual immigration officer and is not automatically subject to independent review at any stage. Legislation providing automatic bail hearings was passed in 1999 but never implemented, and has been repealed by the 2002 Nationality, Immigration and Asylum Act.

In BID’s experience, the detention of asylum seekers and migrants gives rise to situations of arbitrary detention, as defined by the United Nations and violates principles of liberty enshrined in international human rights law. It causes suffering and injustice on a level utterly disproportionate to the government objective of immigration control.’

These centres have been officially condemned:

In its report published today (10 March), the Prison Inspector urges the Home Office to take a ‘remedial action’ to address continuing long-term immigration detention of migrants, after finding a number of cases of excessive detention at Brook House Immigration Removal Centre.

During the inspection of Brook House Immigration Removal Centre near Gatwick Airport in October and November 2016, the inspection team found 23 individuals who had been detained for over a year.026234_cdb807a463234804b34eefbf342c1339-mv2.png_srz_600_303_85_22_0.50_1.20_0  Four of these had been detained for over two years and the longest period of detention they found was two and a half years.

The report provides further proof of the government’s failure to deliver detention reform, more than a year later after it was pledged by the Government. 

While acknowledging general improvements in detention condition at Brook House, the inspection team is critical of the fact that no analysis has been conducted by the Home Office on why average length of detention increased from 28 days to 48 days since the previous inspection in 2013.  The report states ‘(i)n the absence of such analysis, it was hard to see how detention periods could be systematically reduced and the inevitably negative outcomes for detainees mitigated’.  The inspection also found that the average cumulative length of detention was three months, which was described as ‘too long’. 

The UK remains the only country in Europe that detains migrants without a time limit.  Over the years, this policy has received severe criticism by a number of bodies, including the Shaw Review, the government’s own review of immigration detention which published in January 2016 and the cross-party Parliamentary Inquiry into the Use of Immigration Detention who produced their report in 2015.  The UK’s National Preventative Mechanism, to which the Prison Inspector belongs, also called for a time limit on immigration detention.’   

So, although I could well go on about how extremely grim if not desperate conditions have become for refugees in Greece or Croatia or Hungary, let’s briefly focus our attention on the phrase: ’the U.K. remains the only country in Europe that detains migrants without a time limit.’ What has this to do with the spirit of the 1951 convention? All over Europe, countries which are ‘signatory’ to that convention are systematically ignoring and undermining the pledges they signed up to. The U.K. is not the worst, but it is a part of a grand alliance of countries determined to defeat the Convention’s purpose

It’s time to call, across the world, for a reaffirmation of the Refugee Charter in the light of the principles which inspired it. Come on, citizens, churches, NGOs, and shame your governments into taking up the responsibility for the world’s frightened people on the run; rather than shutting them out, locking them up and deporting them. ACT NOW!

Here is Niyat Kidane singing for Eritrean refugees at a camp in Ethiopia.