Discrimination in Occupied Palestine: Validating the Obvious is Necessary

Richard Falk

In 2010 only the most diehard Zionist would deny the presence of multiple forms of Israeli discrimination being daily inflicted upon the Palestinians in the course of an occupation that has gone on for more than 43 years. It is hardly a secret that Israel lavishes every kind of benefit on the settler population of the West Bank while subjecting Palestinian existence to severe torments that bring cruel suffering, and produce an atmosphere of unalleviated anxiety that inevitably accompanies a situation in which the oppressor can do anything it wants whenever it pleases (up to and including dispossession and murder) with impunity, while the oppressed is left utterly vulnerable without the protection of law and placed in a no-law vacuum that constitutes a condition of utter subjugation (or subject to Israeli military law, which is roughly the equivalent), that is, when victimized, no-law, when accused, one-sided oppressive law).

The release a few days ago of an exhaustive Human Rights Report, “Separate and Unequal: Israel’s Discriminatory Treatment of Palestinians in the Occupied Palestinian Territories,” is a major event. It exhaustively documents the forms of discrimination against Palestinians in the West Bank, and enjoys the credibility of an NGO that has an impeccable global reputation for getting the facts and applicable law right, and exercising restraint with respect to political implications. When HRW speaks the media listens (although media bias is such that it keeps its mouth mostly shut if the target is Israel). The public has every reason to believe that whatever allegations are made by HRW are fully supported by reliable evidence. For all these reasons, and in the setting of the Global Palestinian Solidarity Movement, and specifically the BDS Campaign, those who support the Palestinian struggle should welcome this publication, and do their best to make it as widely known as possible. This is so even though, in important respects, ‘Separate by Unequal’ ( an ironic play on the American Jim Crow doctrine supported for years by the Supreme Court under the rubric ‘separate and equal’) doesn’t tell us anything we didn’t know before, or at least should have known. If anyone is ‘shocked’ after reading this report, it means that for more than four decades their ears have been filled with wax, and their eyes blindfolded.

But the report is more than a conclusive demonstration of acute and pervasive discrimination against Palestinians as a salient feature of the Israeli occupation. It also brings to life abstractions and statistics by relating stories of specific individuals and particular communities that have endured the occupation or enjoyed the privileges of being a settler living in a settlement. This confirms what has been reported in a series of powerful recent books on the occupation that rely on the power of storytelling to convey the actualities of social and political set of conditions. I would recommend highly the following recent books for capturing with compassion and concreteness the daily suffering and insecurity of Palestinian lives, thereby supplementing the more analysis and presentation of the practices reported upon so tellingly in the HRW Report. In my view these books extend the story being told in the report about life in Area C of the West Bank, even though their geographic focus is Gaza or another dimension of life in the West Bank: Laila El-Haddad, Gaza Mom: Palestine, Politics, Parenting, and Everything In Between (Charlottesville, VA: Just World Books, 2010); Rich Wiles, Behind the Wall: Life, Love and Struggle in Palestine (Washington, D.C.: Potomac Books, 2010); Ramzy Baroud, My Father Was a Freedom Fighter (London, UK: Pluto Books, 2010); Sharyn Lock (with Sarah Irving), Gaza Beneath the Bombs (London, UK: Pluto Books, 2010). Each of these books is powerful partly because it speaks so movingly from experience relying on the resources of the heart, as well as those of the head, and thereby creating unforgettable auras of enduring authenticity.

It is an aspect of the ugly atmosphere that still prevails in the United States that whenever HRW issues a report critical of Israel, the organization is  described as ‘courageous.’ In a democratic society that supposedly values the rule of law it should not require courage to depict patterns of practice that so flagrantly and systemically violate international humanitarian law norms as embodied in the Fourth Geneva Convention. But it is courageous. A human rights organization dependent on private funding and media access takes its life in its hands wherever it challenges Israeli policies toward the Palestinians. In this respect, it is appropriate to acknowledge the principled leadership of HRW that undertook to produce this report, knowing with the certainty of the cycles of the moon, that a vicious counter-attack designed to discredit would undoubtedly greet the study at the moment of its publication. And what is more, that the attack would be short on substance, but adept at the politics of deflection.  It would cleverly seek to redirect the eye of a reader from the message to the supposedly perfidious messenger.  Already a spokesperson from the office of the Israeli Prime Minister, Benjamin Netanyahu, launched such an attack only a day after the report was released as saying: “Unfortunately, over the last few years there has been a series of documented cases in which Human Rights Watch has allowed a blatant anti-Israeli agenda to pollute its reporting.” (Financial Times, XII.20.2010) In fact,
HRW is scrupulously careful whenever it ventures on this treacherous ground   of criticizing Israel, and leans over backward, as was also the case with the defamed Goldstone Report, in giving every possible benefit of reasonable doubt to Israeli claims.

NGO Monitor characteristically shoots from the hip, tries its best to discredit NGOs or individuals who dare to be truthful about the situation of Palestinians living under occupation even if their approach is methodical and mild. CNN gave TV exposure to Gerald Steinberg, the notorious founder and principal toxic voice of NGO Monitor, in which he absurdly claimed that the HRW Report consists of “manufactured allegations” that ignore the supposed intense ongoing conflict between Israel and the Palestinians, and is thus insensitive to the “legitimate security” of Israel. From this perspective, it is but a short leap to contend that “the report exploits human rights” and is part of the larger plan to turn Israel into “a pariah state.” In essence, the HRW is being criticized because it relies on information gathered by such highly respected human rights NGOs as al Haq, Badil, B’Tselem, and Yesh Din, as well as the UN agency, OCHA. HRW is also accused of promoting the BDS agenda by recommending that outside sources of settlement funding be respectful of international law and withhold financial support. NGO Monitor also explicitly argues that outsiders should refrain from ever holding Israel accountable because it is as an open society that engages in self-criticism and needs no external assessment as to law or morality. Without much effort at disguise, what irks these defenders of Israel is that the claim that the international community holds Israel to higher standards than other countries in the region, and is supposedly obsessed with Israel while turning a blind eye to the violations of others. Of course, there is a bit of truth to this claim, although it overlooks the degree to which it was a colonialist mentality (first, Britain, and then, the United Nations) that inflicted the tragic destiny on the Palestinian people from a time long pre-dating the independence of Israel as a sovereign state. What is also not considered, is the degree to which the United States in particular, through an unprecedented network of public and private sector initiatives, has been regularly financing the settlement dynamic and Israeli militarism.

What is strange, although understandable given the oppressive structure of Israeli discrimination, is the lack of attention given by the critics of the HRW report to its most central contention: that the Israeli settlers unlawfully present and their settlements unlawfully established are given the fullest protection of the law and the maximum security possible, while Palestinians living under this occupation who are according to international humanitarian law, ‘protected persons,’ are abused constantly, are compelled to live decade after decade without rights or the barest minimum of security, that there land and prospects for a decent future are constantly diminished by the expansion of the settlements.

The moderateness, and from my perspective, the incompleteness of the HRW report can be expressed by calling attention to several shortcomings of its conclusions and recommendations:

--time: although the report is explicit about the patterns of discrimination being aggravated due to the length of the occupation, there is no attention accorded to the intrinsic unlawfulness of an occupation that is so prolonged.
International humanitarian law was designed for temporary occupations of short duration, not a quasi-permanent set of circumstances that includes ill-disguised tactics of land seizure and the incremental dispossession of long-term Palestinian residents. Any ‘right’ of occupation should long since have lapsed. It is a failure of international humanitarian law that it makes no provision for this failure to bring a belligerent occupation to a timely and agreed end (here anticipated in accordance with SC Resolution 242 agreed upon in 1967, and pointing to an Israel withdrawal).

--criminality: the report addresses violations of international law and human rights law, but it holds back from describing these violations in terms of their criminal character. Surely, the structures of discrimination (roads, security, legal regime, access to water, mobility) establish the primie facie basis for allegations of apartheid arising from the dual structure of privilege (for Israeli settlers) and vulnerability and deprivation (for Palestinians). It should be understood that the Rome Statute establishing the International Criminal Court  (ICC) treats apartheid (forms of systematic discrimination based on race) as one type of Crimes Against Humanity. This international crime of apartheid is deliberately conceived of as a distinct crime of generic character, and not to be equated with the racist patterns of discrimination that existed in South Africa under the apartheid regime that operated there. As well, the crime of apartheid is embedded in customary international law, which makes it a crime even without any formal undertaking by the ICC. Additionally, the patterns of discrimination are rendering life unbearable for Palestinians residents in most of the West Bank. As many as 31% of those interviewed for the HRW report are seeking to escape somehow from life under occupation. Such an outcome appears to qualify this occupation as a form of ‘ethnic cleansing,’ even if there is evidence lacking of a blueprint or specific intent. An inference of ethnic cleansing follows from the deliberateness of the dual structures of law and administration, producing either direct or indirect forms of displacement of the indigenous population.

--language: the report speaks in terms of violations, not crimes, not the overall illegitimacy of persisting occupation that encroaches on the fundamental rights of the occupied, and leaves those living under occupation without a clear path to achieving their most fundamental of rights, the right of self-determination. I believe it is necessary to use harsher language than is usual in mainstream circles in describing the situation confronting the Palestinians who continue to endure this occupation. It is ‘annexation’ not ‘occupation,’ it is ‘ethnic cleansing’ not ‘house demolitions’ and ‘settler only roads, not just ‘land seizures,’ and constraints on ‘mobility,’ but ‘settler colonialism.’ In keeping with the BDS campaign it is time for the peoples of the world to perceive the Palestinian multiple nakba (catastrophe) without evasive or legalistic terminology that obscures and normalizes rather than illuminates the abnormality of the situation and gives rise to a mobilizing sense of outrage.

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