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<h1 class="gmail-reader-title">Harvard Law School ‘apartheid’ report leaves Israel’s defenders speechless</h1>
<div class="gmail-credits gmail-reader-credits">By Steve France - April 5, 2022<br></div>
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<p>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, <a rel="noreferrer noopener" href="http://hrp.law.harvard.edu/wp-content/uploads/2022/03/IHRC-Addameer-Submission-to-HRC-COI-Apartheid-in-WB.pdf" target="_blank">IHRC-Addameer-Submission-to-HRC-COI-Apartheid-in-WB.pdf</a> 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 <a rel="noreferrer noopener" href="https://www.ohchr.org/sites/default/files/2022-03/A_HRC_49_87_AdvanceUneditedVersion.docx" target="_blank">apartheid report</a> on March 21. </p>
<p>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.”</p>
<p>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.</p>
<p>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.</p>
<p>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. </p>
<p>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.”) <a rel="noreferrer noopener" href="https://tinyurl.com/yckwmwpr" target="_blank">Link here.</a></p>
<p>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.</p>
<p>It begins by quoting what the commander of IDF forces in the West Bank proclaimed to the Palestinians in 1967:</p>
<blockquote><p>“[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.” </p></blockquote>
<p>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.</p>
<img src="https://mondoweiss.net/wp-content/uploads/2022/04/yair2-1-1024x521.png" alt="" class="gmail-moz-reader-block-img" style="margin-right: 25px;" width="451" height="229">Front
page of apartheid report by Harvard Law School human rights clinic in
partnership with Addameer, Palestinian prisoner organization. February
2022.
<p>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.</p>
<p>According to the Harvard-Addameer report, Palestinians can thus find themselves prosecuted for such things as:</p>
<blockquote><p>“’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).</p><p>“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.’”</p></blockquote>
<p>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:</p>
<blockquote><p>“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.”</p></blockquote>
<p>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.</p>
<div><img src="https://mondoweiss.net/wp-content/uploads/2022/04/yair2.png" alt="" class="gmail-moz-reader-block-img" style="margin-right: 0px;" width="312" height="451">Prisons and detention centers in Palestine and Israel, an image published at Addameer’s site. </div>
<p>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.”</p>
<p>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.”</p>
<p>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.” </p>
<p>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. </p>
<p>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.</p>
<p>Having described the travesty of apartheid justice, the report concludes:</p>
<blockquote><p>“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.”</p></blockquote>
<p>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 <a rel="noreferrer noopener" href="https://www.ohchr.org/sites/default/files/2022-03/A_HRC_49_87_AdvanceUneditedVersion.docx" target="_blank">report</a> 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.”</p>
<p>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.</p>
<p>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 <em>sanctum sanctorum</em> 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.</p>
<p>Addameer itself, of course, is at risk of direct retaliation by Israel, which, as mentioned, <a href="https://mondoweiss.net/2022/01/it-wont-end-with-us-addameer-director-warns-of-repercussions-of-israeli-terror-designation/">already declared it an “unlawful association,” along with the five</a>
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.</p>
<p>This “<em>in terrorem</em>” 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).</p>
<p>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 <em>ad hominem</em>
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.</p>
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