Reviewing The Apartheid Wall After Six Years :
An Insight Into The Colonial Project
By Palestinian Return Centre
24 July, 2010
On the Sixth anniversary of the advisory opinion given by
International Court of Justice (ICJ)on the Wall the Palestinian Return
Centre (PRC) is pleased to offer a short assessment of the moral and
legal victory that was won in 2004 and its aftermath.
One would have hoped that as a result of the legal opinion we would
see a more chastened Israel, reassessing its past and its future but
instead the six years following the moral and legal defeat it has
continued its policy of colonialism and apartheid.
The PRC report ‘Reviewing the Apartheid Wall after Six Years, An
insight into the Colonial Project’ gives useful information and
analysis on the importance of the 2004 ICJ judgement, and the ongoing
colonial aspirations starkly reminded to us by the Israeli decision to
expel four elected MPs from East Jerusalem.
July is the anniversary of the International Court of Justice (ICJ)
advisory opinion on the Wall. The 2004 opinion was a major victory for
the Palestinians and all those championing justice, human rights and
international law. Six years on the moral and legal victory has made
no political impact on the ground. Israel has not shifted from its
colonial policy and instead has adopted legal mechanisms to expel more
Palestinians from their land.
Four elected MPs, born in East Jerusalem, are facing expulsion. They
are currently taking refuge with the Red Cross. The reaction has been
one of outrage but Western governments have been timid in their
The Wall and the unremitting expulsion under legal pretence are born
from a colonial apartheid regime. At its core is an illegal and racist
ideology that seeks to ethnically cleanse the indigenous population in
order to tackle what it sees as the demographic problem in preserving
its contradictory identity of a Jewish and a democratic state.
Unlike global systems of the past the international system is in a
unique and privileged position to discuss political problems using
clear normative frameworks. The machinations of the different
components of this international framework were clearly demonstrated
in July 2004 when the International Court of Justice (ICJ), the
principal judicial organ of the United Nations, was tasked by the UN
General Assembly to issue an advisory opinion on the “Legal
Consequences of Construction of a Wall in the Occupied Palestinian
Territory (OPT)”. Amongst its many conclusions were:
• The construction and operation of the wall violates international
• The Wall is part of a continuing attempt by Israel to change the
legal status of the OPT including East Jerusalem.
• The construction is a form of collective punishment.
• The Wall is a disproportionate response to any threat faced by
• The wall violates the rights of the Palestinian people to self
This was an unprecedented moral and legal victory for the Palestinian
cause. However, Six years on, instead of finding a more chastened
Israel we find a rogue, pariah state, beyond the pale of international
law displaying yet more aggression against the Palestinians and
cementing its colonial project.
If there were any doubts that Israel is a colonial, occupying force
and if there were any doubts that Israel is an apartheid state then
the wall and its policies towards the Palestinians should enlighten
the incredulous. Israel’s policies since the ICJ ruling are
reminiscent of South African Apartheid, and a supremacist ideology
that has no compunction in flouting morality and law.
Too often words evoking visceral response like colonialism and
apartheid are sensationally and politically used and have no
historical and factual basis. This is not true for Israel. In January
2007 Professor John Dugard, in his capacity as UN special Rapporteur
on human rights in the OPT, stated that Israel’s military occupation
displays elements of colonialism and apartheid. Professor Dugard in
his report to the Human Rights Council also suggested that an advisory
opinion on the legal consequences of Israel’s conduct should be
sought from the ICJ to compliment the opinion on the Wall.
Colonialism and Apartheid both constitute serious violations of
fundamental human rights. Both have been consistently condemned by the
international community and both, like the crimes of ethnic cleansing,
genocide and torture, are amongst the peremptory norms: i.e. rules
from which no derogation is permitted.
To explore these very serious accusations an international team of
scholars were assembled by the Human Sciences Research Council of
South Africa, a research body commissioned by the South African
Parliament in 1968. Its finding corroborated John Dugard’s position
and made many disturbing conclusions amongst which were that:
• Israel’s annexation of East Jerusalem is manifestly an act
based on colonial intent.
• Israel’s acquisition of territory in the West Bank starkly
illustrates colonial intent.
• By portioning contiguous blocs of Palestinian areas into cantons,
Israel has violated the territorial integrity of the OPT in violation
of the Declaration of Colonialism.
• Israel has introduced a system of apartheid in the OPT(2).
The aggregate wisdom of the international community is palpably
recoiled by Israel’s intransigence to no great effect. Instead what
we have witnessed is further aggression and a slow but affective
implementation of the Zionist goal to cleanse Palestinian lands of its
indigenous population. Beyond the everyday events and commentaries on
single catastrophic events like siege and war there is a common thread
that unites Israel’s policy. It is the simple but silent truth that
has been cardinal throughout Israel’s existence and continues to be
so. It is the truth that Israel was founded on a policy of ethnic
cleansing and it has remained committed to this policy ever since its
Throughout history Israel rarely missed an opportunity to implement
its core principal of population transfer and it has relentlessly
pursued this course through its many wars, creeping colonisation in
the form of settlement building, a regime that combines occupation,
apartheid and colonisation.
Israel’s entire legal structure in the occupied territory is
designed to serve this end. Since 1967, in order to control the
occupied Palestinian population, Israel enacted more than 1,200
military orders and has altered the administrative and legal situation
in the Occupied Palestinian Territory in violation of international
In securing its aspiration and maintaining Jewish privileges over the
land Israel enacted the Law of Return (1950), the Law of Absentee
Property (1950), the Law of the State's Property (1951), the Law of
Citizenship (1952), the Status Law (1952), the Israel Lands
Administration Law (1960), the Construction and Building Law (1965),
and the 2002 ‘temporary’ law banning marriage between Palestinians
in Israel and Palestinians of the occupied territories. Consistent
with this trend it enacted in April 2010 two further military orders,
an Order regarding Prevention of Infiltration (Amendment No. 2) and
the Order regarding Security Provisions (Amendment No. 112).
A vivid illustration of how the April military order will impact the
Palestinians in East Jerusalem was highlighted in June 2010 when four
elected MPs were arrested for refusing an Israeli order expelling them
from their birth place in East Jerusalem. Many Palestinians fear their
expulsion could set a precedent for the removal of more of the nearly
270,000 Palestinians living in east Jerusalem, which Israel occupied
in 1967, an occupation that has never been accepted internationally.
Richard Falk, the UN special rapporteur on human rights in the
Palestinian territories, cited the four MP's case in a statement on
saying that he saw it as part of "a larger, extremely worrying pattern
of Israeli efforts to drive Palestinians out of East Jerusalem - all
of which are illegal under international law".
When Israel annexed East Jerusalem in 1967, the government did not
dream of conferring citizenship on the inhabitants, which would have
significantly increased the percentage of Arab voters in Israel.
Neither did they invent a new status for them. Lacking other
alternatives, the inhabitants became “permanent residents”, a
status devised for foreigners who wish to stay in Israel. The Minister
of the Interior has the right to revoke this status and deport such
people to their countries of origin.
Clearly, this definition of “permanent residents” should not
apply to the inhabitants of East Jerusalem. They and their forefathers
were born there, they have no other citizenship and no other place of
residence. The revoking of their status turns them into politically
homeless people without protection of any kind.
This forced expulsion and illegal revocation of residency rights is
not only happening to parliamentarians and public figures, but it is
happening to many ordinary Jerusalemites as well. No one, it seems, is
safe from Israel's insistence on gradually emptying the land of
Palestinians. In 2008, Israel revoked 466 Jerusalem residency cards,
with the number expected to skyrocket in 2010 as a consequence of its
April military order.
What is being played out is unbridled hubris, an impenetrable sense
of exceptionalism and a clear desire to have immutable ownership and
unchallengeable control over Palestinian lives. These core sentiments
have lead to the series of acts that would cause utter shock and
outrage if carried out anywhere else in the world.
Israel’s annexation of East Jerusalem and its legal framework in
the occupied territories is manifestly an act of colonial intent.
Israel has no sovereignty and no legitimacy in these territories to
enforce such policies.
It goes without saying that Israel bears the primary reasonability
for remedying the illegal situation it has created. It has a duty to
cease its unlawful activity and dismantle its colonial and apartheid
Thus far Palestinians have been failed by the formal international
system which continues to stall and buckle in meeting its
responsibility. The international outrage against the Gaza siege and
assault on the Freedom Flotilla suggests that calls for effective
action are greater than ever. The call for justice is at the level of
apartheid South Africa and global institutions should respond
appropriately or risk their own credibility.
The case of the four elected MPs is just a small part of the
mechanism that Israel has refined over the decades in fulfilling its
colonial objectives and tackling what it regards as the demographic
problem. Changing facts on the grounds has been a constant goal in
order to prejudice any future negotiations.
Israeli ‘democracy’ is moving further and further to the right.
The Knesset, as was illustrated by the mob assault on Haneen Zoabi, an
elected member of the Knesset, highlights a worrying trend towards
If states fail to full fill their responsibilities they too are
acting outside the law. If a state aids or assists in this land theft
and allowing for the slow and gradual ethnic cleansing then it is
complicit in maintaining a colonial and apartheid system.
It also goes without saying that states, inter governmental and non
governmental agencies also have a duty to prevent and bring to book
all breaches of peremptory norms of international law. States must not
recognise the unlawful situation in Palestine and must issue robust
condemnation of Israel’s annexation of Palestinian territory in East
Jerusalem and its criminal intent to expel Palestinians from their
At the very least individual states and parliamentarians from around
the world must reject Israeli decision to expel the four elected MPs
from East Jerusalem. The MPs, who were all born in East Jerusalem and
currently taking protection under the Red Cross, need the support of
the international community. This policy must be seen for what it is;
a gradual step to remove Palestinians from their homeland through
legal pretence. If Israel succeeds many more expulsion will follow.
The international community must act before Israel becomes emboldened
in pursuing this outrageous course.
(1) International Court of Justice, Legal Consequences of
Construction of a Wall in the Occupied Palestinian Territory, p 175
(2) Human Science Research Council, Occupation, Colonialism,
Apartheid? A re-assessment of Israel’s practices in the OPT under
international law. May 2009 Cape Town