The Russell Tribunal on Palestine, Cape Town session

MEMO Summary

The Russell Tribunal on Palestine (RToP) is an international people’s tribunal set up with the intention of seeking justice for the Palestinian people where governments and international institutions have failed to do so. By raising global levels of awareness it is hoped to put pressure on decision-makers to look at the facts surrounding Israel’s oppression of Palestinians. Following two successful sessions in Barcelona and London, the third session was held in Cape Town. The tribunal considered the question, “Are Israel’s practices against the Palestinian people in breach of the prohibition on Apartheid under International Law?”

Cape Town was a hugely symbolic and fitting venue for the programme, not least because it took place in the iconic District Six Museum in the city. District Six was a thriving multi-racial, multicultural community broken up in the 1970s by the South African apartheid government. Only now are homes being rebuilt for, as far as possible, the original tenants or their descendents. The devastating destruction of a community for purely racist reasons has strong parallels with what is happening in occupied Palestine today. Esteemed veterans of the South African struggle against Apartheid, including Archbishop Desmond Tutu and Ronnie Kasrils, lent added weight to the value and gravity of the RToP proceedings with their presence.
Before the session began the RToP was mired in controversy. Judge Richard Goldstone wrote what will undoubtedly be regarded as an infamous article in the New York Times in which he derided both the tribunal and the subject matter it was due to investigate. He declared attempts to brand Israel as an apartheid state to be “offensive… false… [and] malicious”, claiming that “in Israel, there is no apartheid”. This assertion was obliterated soundly during the intense two-day hearing.

The Russell Tribunal brought together a panel of distinguished jurors to listen to experts and witness testimonies on the various ways in which Israel can be said to be committing the crime of apartheid. Among the jurors were Nobel Peace Prize winner Mairead Maguire; Michael Mansfield QC, one of the UK’s leading barristers; Ronnie Kasrils, a veteran of the South African anti-apartheid struggle and a former member of Nelson Mandela’s government; Stѐphane Hessell, a concentration camp survivor and one of the original framers of the 1948 Universal Declaration of Human Rights; Cynthia McKinney, a former US Congresswoman and presidential nominee for her party in 2008; and Alice Walker, a Pulitzer Prize-winning author.
The tribunal’s sitting concluded with the jury’s unanimous determination that, having given due consideration to relevant international law as well as examining some of Israel’s institutional policies of discrimination against the Palestinian people, Israel can be said to be committing both the crime of Apartheid and the crime of Persecution, both of which amount to crimes against humanity. How did the jury reach that conclusion? The following is a brief summary of some of the key witness testimonies. The experts putting their case to the jury included Palestinian eyewitnesses as well as South African experts on apartheid and international professionals from all walks of life who testified to the apartheid nature of Israel’s treatment of Palestinians.

DAY ONE

Archbishop Desmond Tutu delivered the opening remarks and began by recalling his “anguish” and “deep sadness” when held up at checkpoints in the occupied West Bank where he witnessed the same gross mistreatment of Palestinians that black people had been subjected to during South Africa’s apartheid regime. Criticising the Israelis who “seem to have forgotten their own history” of suffering and persecution and are meting out untold hardships on the people of Palestine, Archbishop Tutu issued the warning that Israel has already lost because, “God is always on the side of the weak, the oppressed, the downtrodden.” He asked, “In this situation, who are the oppressed? Who are the suffering ones? … Always in the end the poor, the oppressed, the marginalised will be vindicated because God is on their side; always… In the Holy Land the Palestinians are the ones who are suffering.” 
 
Raji Sourani, a leading human rights lawyer from the Gaza Strip, put the matter into perspective by describing the current status of the occupation of his country. He described the “Swiss cheese” West Bank dotted with its ghettos and “Bantustans”, and Israeli control of 80% of the water in the West Bank (Palestinians only get 20 litres a day whereas Israelis get 300 litres per day). He referred to the daily and systematic torture of Palestinians by Israelis, the practice of deportation as punishment, the immoral and excessive use of administrative detention (indefinite detention without charge or trial), and so on. He decried the way that the Palestinian people have been punished, imprisoned and “paralysed” in Gaza for daring to vote for Hamas in free and fair elections. He reminded the jury members how, during Operation Cast Lead, civilians were targeted, as well as schools, homes, hospitals, food and medical storage facilities and even the UNRWA headquarters, and yet no justice has been forthcoming and Israel has not been called to account. Sourani called this a global conspiracy of silence. “The siege is still intact,” he said, “the suffocation is still there and there is still the smell of death and destruction in Gaza’s streets. The situation is worse now than it was in 2009.”

Associate Professor of International Law Max du Plessis, a South African, detailed the relevant legal instruments in international and customary law in relation to the definition and legal prohibitions against apartheid. His assessment included a consideration of the Apartheid Convention [1973]; the International Convention on the Elimination of All Forms of Racial Discrimination [1965]; the Universal Declaration of Human Rights; and other legislation. He determined that despite arguments to the contrary the legal term apartheid absolutely can apply to situations beyond that to have occurred in South Africa. Dr David Keane, a law lecturer from the University of Middlesex in Britain, also discussed the issues of race and racism for the purposes of international law.

Whereas most experts were either speaking from a Palestinian or a South African perspective, Professor John Dugard, former Special Rapporteur for Human Rights in the Occupied Palestinian Territory and a South African himself, was able to speak on both fronts from his own personal and professional experience. He described the “substantial similarities” between the white apartheid regime in South Africa and the Israeli apartheid system today, and the similarities in terms of their policies of discrimination, repression and territorial fragmentation. The “discrimination” element, he said, was evidenced inter alia by issues like the racist behaviour at checkpoints; the treatment of Palestinians as “sub-humans”; and the thousands of illegal house demolitions. Prof. Dugard determined that the illegal Israeli separation wall and the racist Israeli-only roads were tools of discrimination which went far beyond anything that was ever employed in South Africa by the apartheid regime. In terms of “oppression” he referred to the Israel Defence Forces (IDF) raids on Palestinian homes; the brutal use of attack dogs; IDF torture of Palestinians; and the practice of administrative detention. Dugard declared that there were far more Palestinian political prisoners in captivity today than there had ever been in South Africa (there are at the very least still 6,000 Palestinians political prisoners incarcerated in Israel). With regards to “territorial fragmentation” and the seizure of land he pointed to the 500,000 settlers (or vigilantes as he called them) who are currently occupying the West Bank. He mentioned how Palestinian land has been expropriated by the Israelis via the construction of the illegal wall, illegal settlements, militarised zones and so on. Prof. Dugard ended by saying that “one can safely conclude that the three principle features of apartheid… are repeated in the Palestinian territories… There are sufficient similarities between the two regimes to justify a full scale investigation…” Furthermore, he criticised the fact that “Israel accuses the Palestinians of terrorism, overlooking the fact that both the IDF and settlers engage frequently in terrorist activities, and so it was in South Africa.”

Emily Schaffer, an American-Israeli human rights lawyer based in Tel-Aviv gave a detailed summation of the discriminatory treatment faced by Palestinians under Israeli law. She cited the example of two men committing an identical crime, one being Palestinian and one being an Israeli Jew, and demonstrated how different their treatment would be. This differential treatment includes the following: Israelis are tried under civil law, Palestinians are tried in military courts; the Israeli man will see his lawyer without delay, the Palestinian can be denied access to a lawyer for 31 days (in fact the Palestinian man’s lawyer – if a Palestinian himself – may not get the travel permit to travel to the Israeli military base where the prisoner is being held); the Israeli man can expect to see a judge within 24 hours, the Palestinian man can be held for 8 days before a judge sees him; the Israeli could be held on remand for as long as 30 days (in security cases up to 9 months) whereas the Palestinian could be held on remand for up to two years. Moreover, Israeli prisoners have a right to know the charges against them whereas Palestinians don’t and sometimes only meet their lawyer for the first time in court. Proceedings are all in Hebrew which is fine for the Israelis but unjust for the Arabic-speaking Palestinians. The Israeli in a civil trial has his proceedings open to public scrutiny and they can be recorded, whereas the trials of Palestinians take place on military bases and are carried out in secret, and often not even family members are able to attend, let alone the media or other interested parties. Maximum sentences also differ according to your race/religion, so whereas a maximum sentence for an Israeli for the crime of manslaughter is 20 years, for a Palestinian there is no maximum and they can be sentenced to life. Schaffer gave many other examples of how Palestinians are denied fair process and the legal and moral presumption of innocence until proven guilty.

Other stark differences in legal processes include the difference in the age of responsibility for Israeli children which begins at a later age than that for Palestinians. Many Palestinians are also subjected to administrative detention whereby they are held without charge or trial, and can be held this way for years on end. Israelis are rarely, if ever, subjected to this form of abuse. By comparing the two different legal systems under which Israelis and Palestinians are treated Ms Schaffer gave one of the starkest examples of systematic discrimination which added to the case proving the existence of an apartheid system in Israel and the occupied Palestinian territories.

DAY TWO

Ironically, the tribunal’s second day began with the announcement that one of the Palestinian speakers due to offer first-hand witness testimony about restrictions on movement for Palestinians had been subjected to an Israeli travel ban and was not allowed to leave the country. The point about restrictions on free movement having been demonstrated more by his absence than anything he could possibly have said in person, the morning continued with a discussion on that very subject.

Testimonies were given relating to the denial of basic rights to Palestinians including the right of free movement, which is hindered by hundreds of checkpoints, roadblocks, trenches, settler-only roads and militarized zones. The subjugation of Palestinians living in the Jordan Valley was also highlighted; 59% of the valley is controlled by Israel by virtue of its declaration that the land is either a “closed military area” or a “nature reserve” or designated for (illegal) settlements.

Luciana Coconi described the extent of restrictions placed on Palestinians including discriminatory policies impinging on their rights to health care, water, housing, education and fair wages. Following her, Lea Tsemel, a legal advisor for the Public Committee Against Torture in Israel and a founding member of the Israeli feminist movement, outlined some of the discriminatory bills and laws passing through the Israeli Knesset (parliament) which discriminate against Palestinians. She referred to a series of land laws which make it impossible for Palestinians to buy or lease land; the Nakba laws which make it an offence to commemorate the massacres and mass expulsion of Palestinian in 1948; the Loyalty Oath and so on, all of which amount to a systematic regime of domination and subjugation amounting to apartheid.

Professor Jeff Halper, the Coordinator of the Israeli Committee Against House Demolition (ICAHD), described the symmetry between the control of housing rights in apartheid South Africa and Palestine. He pointed out that the figure quoted by ICAHD, of 26,000 Palestinian homes having been demolished since 1967, does not include the number of Palestinian homes and villages destroyed inside Israel itself, nor the homes destroyed during military action, such as during Operation Cast Lead in Gaza where at least 8,000 homes were destroyed; nor does it include self-demolitions in which Palestinians are forced to tear down their own homes to avoid Israel fining them $15-20,000 (fines are reduced by half if you demolish your own home). In his estimation, the Judaisation process and system of relocation “is certainly ethnic displacement and I would even go so far as to say is ethnic cleansing.”
 
One of the most impassioned and hard-hitting witness testimonies was delivered by Palestinian Knesset Member Haneen Zoabi. In the second ironic twist of the day, only shortly after she delivered her testimony it was revealed by session chairman Michael Mansfield that word had just been received that the Israeli Knesset was, once again, trying to strip Ms Zoabi of her Israeli citizenship, presumably, in part, as a punishment for her speaking out about the discrimination that she and other Palestinians are facing. Just before this announcement Haneen Zoabi had stood at the podium and reminded us emphatically that having been born in Bethlehem, “I didn’t immigrate to Israel, it was Israel which immigrated to me”; and yet, in the racist narrative espoused by Israel’s Knesset, courts and media it is the native Palestinians who are referred to as the “invaders”. She said that she and all of the other 1,200,000 Palestinians living in Israel were direct and living proof of the racist Israeli apartheid system. They were not even referred to as Palestinians but as “non-Jews” and as “non-Jews” living in a “Jewish state” they, the “forgotten Palestinians”, were described by Israel not as the native people but as a “strategic threat”. But, she said, in Israel it is democracy that is the true strategic threat. She asked how a state which privileges Jews over Palestinians and is controlled exclusively by Jews for Jews at the expense of the native Palestinian population could be anything other than a form of apartheid. Her citizenship is conditional on her swearing, not to uphold the laws of the land, but swearing loyalty to Zionism. She went on to describe the ethnic cleansing of Palestinians, the Judaisation of her homeland, and the changing of all road signs and place names into Hebrew wiping out the historical names of Arab villages.

Many other witnesses and experts also gave their testimony, including Jamal Juma’a, the Co-ordinator of the Palestinian organisation Stop the Wall, and Mohammed Khatib, a member of the Bil’in Popular Committee Against the Wall and Settlements.

Having given due consideration to the testimony of over 20 experts and witnesses the jurors retired to deliberate and on the third day delivered their opinion which was unanimous and unequivocal: “Israel subjects the Palestinian people to an institutionalised regime of domination amounting to apartheid as defined under international law” and “Israel’s rule over the Palestinian people, wherever they reside, collectively amounts to a single integrated regime of apartheid.” This applies to Palestinians living in the occupied West Bank, Gaza Strip and Israel, and in the diaspora.

Although not legally binding the Tribunal ended by urging “the state of Israel to dismantle its system of apartheid over the Palestinian people immediately, to rescind all discriminatory laws and practices, not to pass any further discriminatory legislation, and to cease forthwith acts of persecution against Palestinians.” It also offered a list of recommendations (including compensation for Palestinians) and called upon the international community to fulfil its duty “to cooperate to bring to an end the illegal situation arising from Israel’s practices of apartheid and persecution… to consider appropriate measures to exert sufficient pressure on Israel, including the imposition of sanctions, the severing of diplomatic relations collectively through international organisations, or in the absence of consensus, individually by breaking bilateral relations with Israel.”

See full summary of the judgment produced by the Russell Tribunal

[Final Note: The planning for the next session of the Russell Tribunal is currently already underway with New York as a potential venue next September.]