[News] Harvard Law School ‘apartheid’ report leaves Israel’s defenders speechless

[Anti-Imperialist News]

mondoweiss.net
<https://mondoweiss.net/2022/04/harvard-law-school-apartheid-report-leaves-israels-defenders-speechless/>
Harvard Law School ‘apartheid’ report leaves Israel’s defenders speechless
By Steve France - April 5, 2022
------------------------------

In case you missed it, Harvard Law School’s International Human Rights
Clinic (IHRC) lately issued a report that finds Israel’s treatment of
Palestinians on the West Bank amounts to the crime of apartheid. The study,
IHRC-Addameer-Submission-to-HRC-COI-Apartheid-in-WB.pdf
<http://hrp.law.harvard.edu/wp-content/uploads/2022/03/IHRC-Addameer-Submission-to-HRC-COI-Apartheid-in-WB.pdf>
came
out on February 28 in the wake of five longer, wider-ranging, apartheid
reports published since 2020 – and just before the UN Special Rapporteur on
Human Rights in the occupied Palestinian territories published another
apartheid
report
<https://www.ohchr.org/sites/default/files/2022-03/A_HRC_49_87_AdvanceUneditedVersion.docx>
on
March 21.

Prepared by the law school’s human rights clinic in partnership with
Ramallah-based Addameer Prisoner Support and Human Rights Association, the
report was released without fanfare and received minimal press coverage.
And it has, so far, drawn no public condemnation by the Israel lobby. The
state of Israel reacted only with a perfunctory, non-substantive statement
by its UN ambassador, Gilad Erdan, that “those who wrote the report on
behalf of Harvard . . . decided to delegitimize the Jewish state because of
their antisemitic views.”

Although only 22 pages long, the report includes 130 footnotes that deftly
back up the text and let readers drill down further. The narrow focus
shines a searching light on the customized legal instruments and processes
implemented since 1967 to deprive West Bank Palestinians of their human,
civil and political rights.

The precise description of the lawfare by which Israel has, with impunity,
intimidated, confused, humiliated, bullied, imprisoned, tortured and killed
Palestinians since 1967 generates a compelling cumulative impact.
Individual items in the litany are not in themselves news but to see them
depicted in their coordinated entirety is to see how the Israeli machine of
injustice does its anti-human work.

Given the potency of the report and the prestige of the Harvard brand,
there is little doubt that the lobby will eventually go after the IHRC. The
Israeli ambassador’s phrasing in his comments hints at the probability that
there will be attempts made to pressure Harvard and Harvard Law School to
disassociate themselves from “those who wrote on behalf of Harvard,” i.e.,
the IHRC.

In the meantime, the authors of the report have been circumspect, as has
the UN body to which the report was submitted. The United Nations
Independent International Commission of Inquiry on the Occupied Territory,
including East Jerusalem, and Israel, which was convened by the UN Human
Rights Council in May 2021, had called on civil society groups to document
possible apartheid violations. (Addameer and the legal aid and research
group Al-Haq had sent in another such report in January this year, titled
“Entrenching and Maintaining an Apartheid Regime over the Palestinian
People as a Whole.”)  Link here. <https://tinyurl.com/yckwmwpr>

After a meticulous outline of the crime of apartheid in international law,
including a clear explanation of how and why ethnic groups, such as the
Palestinians (or the Rohinga of Myanmar), are considered “racial groups”
under the law, the Harvard-Addameer study maps the “dual legal system that
entrenches Jewish Israeli supremacy” on the West Bank.

It begins by quoting what the commander of IDF forces in the West Bank
proclaimed to the Palestinians in 1967:

“[A]ll authority of government, legislation, appointment and administration
pertaining to the area or its residents will now be exclusively in my hands
and will be exercised only by me or by any person appointed therefore by me
or acting on my behalf.”

Fifty-five years later, this dictatorial power, which might be
understandable in the immediate aftermath of a recent occupation of enemy
territory, has been unwaveringly exercised and institutionalized. The power
is deployed by way of military orders, more than 1,800 of which have rained
down on the Palestinians, but never on the Israeli settlers in illegal
Jewish-only settlements that have spread throughout the Occupied
Palestinian Territory.
Front page of apartheid report by Harvard Law School human rights clinic in
partnership with Addameer, Palestinian prisoner organization. February
2022.

The military orders define “security offenses” ranging from terrorism to
traffic offenses. They are prosecuted in military courts, whose workings
are ostensibly subject to the Israeli Supreme Court, which over the years,
has spoken sternly of the many stringent safeguards that must control the
military power. In fact, however, the court defers to the Israeli
military’s findings and determinations. Thus, for example, as of 2021, the
report says that, out of hundreds of Supreme Court reviews of
administrative detention orders, only one has resulted in an order’s
revocation.

According to the Harvard-Addameer report, Palestinians can thus find
themselves prosecuted for such things as:

“’entering a closed military zone,’ which can be a designation attached on
the spot to an area of protest, or ‘membership and activity in an unlawful
association’ (note that the Israeli army has assumed power to declare as
‘unlawful association[s]’ groups that advocate for ‘bringing into hatred or
contempt, or the exciting of disaffection against’ Israeli occupation
authorities).

“Similarly, there are military orders that criminalize gatherings of more
than 10 people that ‘could be construed as political,’ if they take place
without a permit; publishing material ‘having a political significance’;
and displaying ‘flags or political symbols’ without prior military
approval. Peaceful expression of opposition to the occupation may run
counter to military orders that criminalize anyone who ‘attempts, orally or
otherwise, to influence public opinion in the area [the West Bank] in a
manner which may harm public peace or public order’; ‘publishes words of
praise, sympathy or support for a hostile organization, its actions or
objectives’; or commits an ‘act or omission which entails harm, damage, or
disturbance to the security of the area or of the Israeli Defense Forces.’”

If this web of orders fails to cover some “act or omission” — or speech or
silence — that the Israeli commanders dislike, the terms are easily amended
or a new order can be issued. Any Palestinian who wants to argue about his
alleged offense is easily shut up – and shut in — using administrative
detention, a streamlined incarceration process that the study reports is:

“not subject to a warrant and charges do not need to be disclosed to the
detainee. Military Order no. 1651 further grants the Israeli military broad
powers to withhold a detainee’s right to communicate with a lawyer and to
be brought before a judge in a timely manner. In the course of
administrative proceedings to confirm an administrative detention order,
military courts may rely exclusively on ‘secret evidence’ that is not made
available to the detainee. If the detention order is affirmed, the Order
provides that the military commander may extend the detention order every
six months, subject to no total time limitation.”

Thousands of Palestinian men, women and children are locked up this way
every year. During their imprisonment, they may experience “prevalent
practices of torture and ill-treatment, including beating, physical
assault, and positional torture,” the study says, drawing on Addameer’s
long history of defending prisoners against abuse.
Prisons and detention centers in Palestine and Israel, an image published
at Addameer’s site.

Regarding torture, the Israeli Supreme Court’s decisions are particularly
noble-sounding and thoroughly ineffectual in practice. The justices have
declared that “torture and ill-treatment of detainees is illegal,
emphasizing the absolute prohibition of torture and other cruel, inhuman or
degrading treatment or punishment in international law,” the
Harvard-Addameer study says. But the court has also “recognized ‘ticking
bomb’ scenarios where ‘necessity’ could be a possible criminal defense for
using ‘physical interrogation methods.’” The justices have insisted that
the “necessity defense” should apply only if the treatment of a person
wasn’t so severe as to constitute torture — a determination that would
depend on the “concrete circumstances” in each case. The military
interrogators thus have the opening they need to always justify “necessity
interrogations.”

Recently, the court has clarified that the “ticking bomb” exception doesn’t
mean that danger is imminent but merely that there is an immediate need to
obtain information. No bomb is needed, in other words.  “In practice,” the
study says, the court “has created a grave loophole” that enables “the use
of torture and ill-treatment against Palestinian detainees with impunity.”

Palestinians also are “deprived of the right to be tried before an
independent and impartial tribunal,” the study shows. “The prosecutors,
administrative officers, and, most importantly, judges in the military
courts are all Israeli military officers,” the authors wrote, noting that
the judges’ impartiality is “fundamentally undermined” because they are
subject to the “system of discipline and promotion within the military.”

Given the suffocating oppression that this regime imposes on West Bank
Palestinians, one can understand why their lot is sometimes said to be
worse in certain respects than that of Palestinians living in the Gaza
Strip. Moreover, the report notes how “suppression of Palestinian freedom
of association and assembly has intensified in recent years, and
criminalization of ‘unlawful’ associations has recently been extended to
six prominent Palestinian civil society organizations,” including Al-Haq
and Addameer itself.

Ironically, the main reason the six groups have been declared unlawful is
believed to be retaliation against their assistance to UN and International
Criminal Court and other bodies seeking to investigate conditions in
Palestine-Israel.

Having described the travesty of apartheid justice, the report concludes:

“These frameworks and institutions, taken together with ongoing long-term
Israeli policies of land confiscation and dispossession, restriction of the
movement of Palestinians, and expansion of illegal Israeli settlements,
systematically serve the purpose of privileging and maintaining the
domination of Jewish Israelis over Palestinians.”

Despite its quiet rollout, the study’s high quality and association with
Harvard likely mean it will play a significant role in establishing
Israel’s apartheid. Michael Lynk, the UN Special Rapporteur, told me that
the study is “exceptionally well researched and reasoned” and that he
“relied upon it in [his] UN report because it was persuasive and rigorous.”
In his  report
<https://www.ohchr.org/sites/default/files/2022-03/A_HRC_49_87_AdvanceUneditedVersion.docx>
to
the UN Human Rights Council in March, Lynk noted the “pitiless features of
Israel’s ‘apartness’ rule in the occupied Palestinian territory that were
not practiced in southern Africa.” He memorably wrote: “With the eyes of
the international community wide open, Israel has imposed upon Palestine an
apartheid reality in a post-apartheid world.”

His report encountered no dearth of commentary – “mostly positive and some
invective and name-calling, not really adding to the debate,” Lynk says –
in other words, the usual, complete absence of substantive criticism of any
of the evidence and legal analysis on which the apartheid verdict is based.
Lynk declined to speculate on the lack of response to the Harvard-Addameer
report.

The Israel lobby’s silence may be explained by the fact that the press has
yet to publicize the report, but it seems inconceivable that the lobby will
leave unchallenged the idea that Harvard, the *sanctum sanctorum* of
American academia, endorsed such an unsparing condemnation of Israel. The
IHRC may be in for some rough weather. At the least, the Clinic’s
relationship with Addameer is likely to be attacked.

Addameer itself, of course, is at risk of direct retaliation by Israel,
which, as mentioned, already declared it an “unlawful association,” along
with the five
<https://mondoweiss.net/2022/01/it-wont-end-with-us-addameer-director-warns-of-repercussions-of-israeli-terror-designation/>
other distinguished human rights and civil society organizations, in
October 2021. Israel has not provided concrete evidence of the “terrorist”
links it claims justify the bans. Only alleged “secret evidence” has been
invoked, which has led Western countries to hold off imposition of their
own related anti-terror sanctions. Moreover, Israel has, to date, largely
held off on executing the orders.

This “*in terrorem*” approach is analogous to the way Israel uses thousands
of demolition orders issued against Palestinian structures but held in
abeyance, sometimes for years, so as to maintain a continuing threat of
sudden demolition. If Israel decides that Addameer, for instance, has gone
too far in exposing apartheid crimes, it might – in addition to physically
attacking Addameer’s offices and personnel – pressure arrested individuals
to give false testimony against Addameer in exchange for a lenient plea
bargain. Such evidence might then be presented to other countries to get
them to sanction Addameer and its personnel (and, of course, the false
charge against Addameer, and such evidence, would be cited by the Israel
lobby in attacks on IHRC to get Harvard to condemn the apartheid report).

Nonetheless, the publication of the report is a victory for Palestinian
human rights. Moreover, the wariness shown by leaders of the Israel lobby
seems to show they are beginning to measure the growing magnitude of the
anti-apartheid movement as it continues to build, the potential of the
apartheid concept to clarify public perceptions and trigger public outrage,
and the risk that flimsy *ad hominem* attacks on those who carry the
apartheid message may only draw more attention to the reports and alienate
more uninformed supporters of the Jewish state.

So where are the Palestinian voices in mainstream media?

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