Ask HRW 11

Author(s): Scott Douglas Jacobsen

Publication (Outlet/Website): Canadian Atheist (Unpublished)

Publication Date (yyyy/mm/dd): 2021

*Apology to Omar.*

Scott Douglas Jacobsen: So today we’ll be doing another educational series interview with Omar Shakir. This is particularly important interview based on the release of a 213 page report entitled A Threshold Crossed: Israeli Authorities and the Crimes of Apartheid and Persecution. So this is published this year in April. So with respect to the general content, the general claims are one apartheid and two persecution. With respect to apartheid, this can be a controversial term. However, it is more commonly recognized within a South African context in recent history. How is this being applied with any universal legal context in international law to the case of Israel and Palestine?

Omar Shakir: Sure. So while apartheid was, of course, originally coined in relation to events in southern Africa, it is the universal legal term set out in numerous major international treaties, including the Convention on the Elimination of Racial Discrimination. Major treaties, including 1973 Convention on Apartheid and the Rome Statute of the International Criminal Court define apartheid as a crime against humanity, which consists primarily of three elements. One is an intent by one group of people to dominate another. The second is systematic oppression by the dominant group over the marginalized group. And third are particularly grave abuses known as inhumane acts. So with respect to apartheid, this is an accepted notion in international law and beyond. It’s a universal legal term. There’s a universal prohibition against this practice that has the status of customary international law.

So Human Rights Watch, when researching situations of discriminations and applying the law, we’ll look at a range of laws, including that around apartheid and applying the facts that we documented where we looked at Israel’s treatment of Palestinians. We then applied the law and reached the conclusion that Israeli authorities are committing the crime against humanity of apartheid. This finding is based on an overarching intent or policy to maintain the domination by Jewish Israelis over Palestinians, which applies to its policies in Israel and the occupied Palestinian territory as well as particularly severe repression against Palestinians that takes place in the occupied territory.

Scott: How is this further extended to persecution in general?

Omar: So the crime against humanity of persecution also set out under customary international law as well as under the Rome Statute for the International Criminal Court. Persecution refers to severe abuses of fundamental rights when combined with a discriminatory intent. So in applying this law to Israel’s treatment of Palestinians, Human Rights Watch concluded that Israeli authorities are committing the crime against humanity of persecution. And this finding was based on a discriminatory intent. Human Rights Watch documented with respect to Israel’s treatment of Palestinians generally as well as the severe abuses of fundamental rights that take place in the occupied Palestinian territory.

Scott: Why doesn’t the Rome Statute define more precisely what is an institutionalized regime?

Omar: Institutionalized regime is a term used by the Rome Statute, of course. But, when looking at its definition, you have to look at it sort of contextually. And while that term is not specifically set out, it clearly sort of, in context, refers to a requirement that there is structural or systematic oppression. And that’s clear not only based on the definition itself, but if you look at the related, the 1973 apartheid convention and you look at the language there, it speaks of systematic oppression. So really, when you look at that definition and you think about sort of the other definition, it becomes clear that while that term does not have a specific definition, it clearly aims to sort of capture the systematic or institutionalized nature of the oppressive discrimination that takes place.

Scott: Also, in July of 2020, Human Rights Watch wrote to the Israeli Prime Minister Benjamin Netanyahu looking for perspectives from the government on some of the issues that the report has been reporting on and published this year. Has there been any response since that time?

Omar: The Israeli government never responded to the July 2020 Human Rights Watch letter, despite confirming receipt of that letter. Human Rights Watch subsequently wrote to the Israeli government the week before the report’s release, sharing an executive summary and offering to do a briefing and share the full report and its findings and recommendations. The Israeli government did not directly reply to Human Rights Watch, of course. Since the report’s release, it has issued statements at different levels with regards to the report and its findings. But it does not directly engage with Human Rights Watch, despite Human Rights Watch’s multiple efforts in advance of the release to engage with them on the findings.

Scott: How is this really a policy seeking to confiscate and maintain a larger portion of “maximal land” for Jewish Israelis as opposed to Palestinians?

Omar: So Human Rights Watch looked at the motivations behind Israeli policy or objectives behind Israeli policies. Looking at statements by officials, looking at government planning documents, debates within the governments and coalitions, and it became clear that the desire to maintain control over land and demographics. In essence, maximizing land and minimizing the number of Palestinians underwrites Israeli policy across the areas where the exercise is control and with respect to land that’s articulated or that plays out in the form of efforts to maximize the land available to Jewish Israelis. And again, this is spelled out in some of the instruments I mentioned, whether it be plans to form the, between quotes, the Negev and the Galilee areas that encompass two thirds of the land in Israel. 

Much of the Palestinian population where there are laws and policies you know, sort of explicitly taken with that aim, including the establishment of admissions committees and hundreds of small Jewish towns across Israel that have the power by law to exclude Palestinians from living there. To in Jerusalem, where the government planning documents sets out the objective of maintaining a solid Jewish majority in the city. You know, the similar dynamics that play out in the occupied territory and government planning documents. And so this is not merely sort of an articulated objective if that objective is then followed by policies and practices to advance that objective.

Scott: It’s very important to note is a term used in the report of “territorial islands” with respect to the West Bank, a 165 of them. How does this impact someone’s just ordinary life, professional life when they’re stuck in siloed little areas or “territorial islands”?

Omar: The dynamic takes different forms, of course, in different areas. But taking, for example, the West Bank, where the dynamic manifests itself most dramatically. You have a situation where the Israeli government has confiscated more than two million dunams of lands. That’s more than one third of the West Bank from Palestinians. This is land that Palestinians cannot access, even except as laborers bearing special permits to temporarily enter. The Israeli government has also taken over much of the natural resources. You know in the West Bank that pushes Palestinians to living in these sort of disconnected enclaves where they have limited access to land for homes, for agriculture, for businesses where in the majority of the West Bank, under exclusive Israeli control, it is nearly impossible to obtain building permits.

And so this means that Palestinians live in areas where they are boxed in. They often face difficulties finding land to build homes or difficulty accessing land that they own for agricultural purposes. It means their access to water and other resources in some areas is quite limited. And it means that it’s quite difficult to realize many of their fundamental rights, including their right to their property, their right to free movement, their right to so many of the kinds of freedoms that are taken for granted in other parts of the world. The confiscation of land, the building of settlements underlies that sort of two tiered discriminatory system that’s in place in the West Bank and in other areas.

Scott: And with this two-tiered system, what is the manifestation of residency as well as nationality?

Omar: You see many similar discriminatory restrictions that take place pursuant to that policy, right? So for example, in the occupied territory, you have more than half a million Palestinians since 1967 that have lost their legal right to live there. Either because they weren’t present in ‘67 when the occupation began or because they were abroad for too long during the first several decades of the occupation and lost their ID status. Or because in the last couple of decades of the freeze in the population registry that the Israeli government says is due to security. But really, indications are this is really more about the demographic control. That policy takes different dynamics in east Jerusalem, which is annexed but still occupied territory where thousands of Palestinians have lost their residency status, which is a conditional status because they were abroad for too long or because they move to a different area outside of Jerusalem.

It’s even policies inside the Green Line, inside Israel proper. While Palestinians, although you know there are citizens inside Israel, are citizens subject to a two tiered citizenship process in which, their legal status stems from their presence on the land decades ago. And where there are restrictions on family reunifications, one that’s been in law for years. Although recently not renewed, they were made to be numerous bureaucratic obstacles as well as the kind of discrimination that permeates based on the different nationality that Palestinians have compared to Jewish Israeli, which can manifest in discriminatory access to land and other respects.

Scott: It doesn’t have to come in the policies, but it can come in the attitudes of the leadership. So particularly striking part of the report is commenting on 2005 renewal of the law. I think it’s believed, according to the Citizenship and Entry into Israel Law was quoting Ariel Sharon “There is a need to hide behind security arguments, there’s a need for the existence of a Jewish state”. And then Benjamin Netanyahu at the time was finding this, “instead of making it easier for Palestinians who want to get citizenship, we should make the process much more difficult in order to guarantee Israel’s security and a Jewish majority in Israel”. Subsequently, 14 years later, approximately in March 2019, Benjamin Netanyahu, as prime minister states or declared “Israel is not a state of all its citizens, the nation state of the Jewish people and only them”.

So obviously, motivations from the top can last for a very long time, can be explicit and then lead to obvious outcomes or consequences that we see on the ground for every day, in particular Palestinians, the denial or restrictions of those rights. Are there other individuals in leadership where you see these kinds of statements pop up over the span of more than a decade?

Omar: Absolutely. I mean, I think the law that you mentioned is actually a great example. I mean, it’s been in the news. It was in the news again in June, July as the Israeli government sought to renew this law. And officials not only from the Likud Party but spanning even Yesh Atid and new Foreign Minister Yair Lapid made clear was that they had demographic motivations, as did the leadership of Likud. But you can certainly look at numerous other policies and practices that have had similar justifications. So, for example, if you want to take the law, if you want to take, for example, the policy regarding who has a right to enter Israel and become citizen more generally, that right provided to Jewish citizens of other countries, while it is denied to Palestinians who are from this land, many of whom reside as refugees in camps across the region.

So while the Jewish-American can tomorrow move to Israel, even if they have no connection to the country and become a citizen subject to an automatic process. A Palestinian who’s been languishing for 70 years in a refugee camp, mere kilometers, you know, from the border or in the occupied territory, is denied that right to return to their homes based on who they are. So, you know, you have that dynamic, which has no other justification other than advancing demographic objectives. You could take numerous other policies, you know, the freeze in the population registry, you know, the restriction you know on, sorry, I’m blanking. But some of the incentives that are in place regarding, for example, you know, subsidies for living in certain areas etc. A lot of these policies that the report documents, you know, either explicitly or implicitly are there to advance the objective of maintaining a Jewish majority, either writ large in the land or in specific areas.

Scott: Regards to recommendations for dealing with domination on the one hand systematic on the part of the Israeli government and then systemized oppression for Palestinians on the other. The report states “in particular, authority should end discriminatory policies and practices regarding the citizenship and residency rights, civil rights, the freedom of movement, allocation of land resources, access to water, electricity and other services, and granting of building permits”. Were there any other items that were considered for recommendation that were more or less borderline issues without sufficient evidence to bring that type of recommendation from Human Rights Watch forward?

Omar: I mean, when it comes to Israeli policy, we were very explicit that all forms of systematic oppression and discrimination, that privileged Jewish Israelis at the expense of Palestinians and systematically violate Palestinian rights to ensure the domination of Jewish Israelis should end, whether it be with regards to citizenship and nationality processes, civil rights freedom of land and resources, water, electricity and other services in the granting of building permits. Sorry, there is static.

Scott: I got a little bit of static, but I’m also getting like a hollow sound.

Omar: Okay, is that better?

Scott: That’s better. Yeah.

Omar: Ok. You know, to take one example, other report mentions that the Israel Nation State Law that has some discriminatory provisions with regards to the right to self-determination, housing or the 2011 Admission Commission committee’s laws that allows discriminations between different groups. There are many other examples that the report outlines that have to do with the situation, whether in Israel, the occupied territory, and we call for those to be changed.

Scott: Take a pause here for a moment. How much time do we have today? I defer to ask that.

Omar: I mean, I know we’ve covered a lot already. Will ten more minutes be OK?

Scott: Sure, let’s do that. Ok, so, Human Rights Watch has been calling on states to establish a United Nations based International Commission of inquiry for the investigation of the systematic discrimination or oppression in the opt in Israel based on group identity. Since this publication of the report in April, what have been some moves around that? It has been three months. It’s only a little bit of time. However, there has been very good commentary on the report and reaction to the report since April.

Omar: So actually that recommendation has been adopted. The UN set up in May commission of inquiry that will not only look into the recent hostilities in Gaza and the precipitating events in east Jerusalem, but will also look at systematic discrimination based on group identity. Taking the language from our report and looking at root causes, including the Israeli government’s crimes of apartheid and persecution. That’s certainly an important step. It has also been important that there’s growing recognition of the Commission of crimes, not only civil society groups, parliamentarians, respected legal academic, civil society, cultural, icons embracing sort of an apartheid framework for their analysis.

But we’ve also even started to see some governments embrace, you know, the reality of apartheid or recognize the reality of apartheid, including governments of South Africa and Namibia, which did so at the United Nations. We’ve seen foreign ministers of France and Luxembourg make references to reports or the reality of apartheid. And we’re starting to see sort of growing moves in parliaments across the world to sort of act pursuant to that reality. So there’s been some encouraging developments, of course, at the same time. There’s still a long way to go. We’re talking about crimes against humanity, some of the most odious crimes that the world knows. And those sorts of crimes require not only recognition that they’re happening because the first step to solving a problem is to diagnose it correctly. 

But also require states to end all forms of complicity in them to investigate and prosecute those implicated in the crimes, not only at the International Criminal Court, but also in national courts under the principle of universal jurisdiction. And so those are really important recommendations that span everything from actions of businesses and arms sales to, you know, more sort of rudimentary language and bilateral agreements. You know, and actions in respect to those implicated in the crime. So the world has a long way to go to develop policies that are reflective of the grave abuses on the ground. We’re not there yet, but it’s important we do get there.

Scott: You published an article in The Hill Times with the Canada director Farida Deif at Human Rights Watch on Israel and Palestine. “It’s time for Canada to recognize reality”, in particular, it was pointed to Foreign Minister Marc Garneau, who has visited, or is going to visit, or is visiting Israel and the West Bank in early July of this year. The main thrust of the article is that it’s more or less a kind of a tired point of talking about things that have been ineffective for decades and not making any substantive changes within Canadian orientation or direction with regards to Israel-Palestine. How is Canada not properly facing its own complicity in ongoing decade’s long international crimes?

Omar: Look, I think it starts with step one, which is to recognize reality for what it is too long. For too long the international community has relied on sort of assumptions that are disconnected divorced from the reality on the ground, right. The idea that a 50 plus year occupation is temporary, that a 30 plus year peace process will end on its own and repressive discrimination. And while many states you know, in reaction to this report have vowed to study its findings, some have embraced its conclusions. Others have not publicly commented but have engaged with Human Rights Watch behind closed doors. The Canadian government was really the one government that came out and sort of publicly repudiated the apartheid analysis. 

And I think that’s clearly not based on the reality on the ground. That’s rather their attempt to sort of, you know, ignore the reality on the ground and maintain a fiction that Israel’s entrenched discrimination against Palestinians is somehow temporary. But really, it’s time that Canada faces reality. For years, people have warned that apartheid lurked around the corner, but really, the threshold has been crossed. This is a finding that only Human Rights Watch has reached. But there are Israeli Human Rights groups, Palestinian groups, dozens hundreds of international and regional groups, two former Israeli ambassador of South Africa, the former UN secretary general.

It’s time for Canada to sort of call a spade a spade to recognize reality for what it is. To give one example, as you know, Canada opposed the ICC’s jurisdiction over the occupied Palestinian territory. And it’s sort of platitudes around the peace process. Canada has lost sight of the dire problem that requires urgent and immediate redress. You can’t cite the lack of a peace process to justify crimes against humanity. So it’s important that Canada and states like Canadandispense with tired talking points and acknowledge a reality for what it is and end all forms of complicity in them.

Scott: Al Jazeera also reported Andrew Mitrovica in an article entitled “Canada’s Blackout of Israel’s Crimes against Humanity”. Apparently, there has been a lot of coverage in Canada, at least from leading news organizations about Human Rights Watch and its report, a recent report. Is this a common pattern for Human Rights Watch, not only in Israel-Palestine or at least in your conversation with colleagues in other countries, country directors in particular, where a country in its news agencies will not report on important findings from Human Rights Watch or Amnesty International or others, because the findings may not necessarily be helpful for the face of international relations of that particular country, Canada or others?

Omar: Look, I think it’s important to note that the Human Rights Watch report was widely covered around the world. It received extensive commentary and coverage. Certainly not every publication reported on it. Human Rights Watch actually wrote about coverage in Australia and the way in which there was an apparent prohibition on the use of the term apartheid that really, you know, strips reporters of their ability to talk about accepted law and legal notions. That said, of course, there is a larger trend that Human Rights groups have documented of the ways in which there’s a chilling effect on discussions around Palestine, including in the world of journalism and the ways in which at different levels of pressure can be brought to bear on those important issues. Some of which is external, some of which is internal within newsrooms.

And that’s certainly problematic, you know, in the context of a situation like Israel-Palestine. For which, there is such a grave misunderstanding in many parts of the world of what the fundamental nature of the conflict is. And it’s incumbent on all public news publications to allow journalists to independently and scrupulously report on the reality on the ground, including the analysis of major organizations and figures regarding the commission of Crimes against humanity. And when that doesn’t happen, I think it does an injustice to the fundamental mission of news agencies to kind of report to the world on the important things happening.

Scott: Mitrovica did interview the Canadian director Deif, and she was quoted as saying the silence. The blanket silence from the public broadcaster CTV, CBC, Global, which was “substantial” and “troubling”. What are some of your next steps for Human Rights Watch with respect to Israel-Palestine? What are your steps moving forward for reporting?

Omar: Yeah. I think Human Rights Watch has found that Israeli authorities are committing crimes against humanity. I think that sort of finding will be fundamental to our advocacy. In the days ahead, the report lays out a number of serious recommendations not only to the Israeli government and to the Palestinian Authority Liberation Organization, but also to the international community. We will continue to advocate for those recommendations to come into order. Those include, you know, recognition that the crimes are taking place. They include the U.N. appointing a global envoy for the crimes of apartheid and persecution globally with a mandate to work, to end those practices. They include the International Criminal Court investigating and prosecuting these crimes as well as national courts under the principle of universal jurisdiction.

We call for states to adopt targeted sanctions, including asset freezes and travel bans against those implicated in the crimes. We call for conditioning all military and security system and arms sales to Israel on authorities taking steps to end these crimes. And we call for countries to review all forms of bilateral engagement to ensure non complicity in the crime. To mitigate human rights impacts and to end activities or mitigation is not possible. So in the days ahead beyond our normal reporting on serious Human Rights abuses committed by Israeli and Palestinian authorities, including the really serious events in May of 2020, one that Human Rights Watch is researching and will be publishing on in the coming months. We will focus, you know, as well on the recommendations of this April 27th report, a threshold crossed and continue to do research and advocacy aimed at recognizing the crimes for what they are and those seriously abusive practices.

Scott: Omar as always, thank you for the highly informative and pleasurable interview.

Omar: My pleasure. I’ll try to get back to you on the transcript and yeah, look forward to seeing this one too. Thanks for a good interview, as always, Scott.

Scott: Excellent. Thanks so much. Take care.

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