The Materialist Lawyers’ Group are practising legal workers with daily experience of the operation of the British and Irish legal systems. We reject the liberal notion that law operates beyond or above politics. We situate our legal practice within the struggle waged by the international working class to overthrow imperial and capitalist domination.
MLG’s monthly column aims to demystify the law and legal processes, interrogating what it means to be a lawyer within a capitalist system, and using our collective legal knowledge to analyse and attempt to answer political and economic questions. We explore the contradictions created when a lawyer’s radical politics clash with her material complicity in the administration of oppressive, unequal and exploitative legal regimes. Those interested in working with MLG, or continuing any of the discussions arising out of our work, can contact us on Twitter or via our website.
Introduction
As Israel stands poised to annex yet more of Palestine, a growing number of people are reaching the conclusion that the state is governed by an apartheid regime. Israel requires its citizens to serve in the country’s armed forces, the Israel Defence Forces, and conscientious objectors who refuse to serve regularly face imprisonment. This article addresses whether that threat of imprisonment amounts to ‘persecution’ for the purposes of the 1951 Refugee Convention, and whether such conscientious objectors who find themselves in Britain might be recognised as refugees on that basis.
What is the legal definition of apartheid?
The term ‘apartheid’ is grounded in South Africa’s particular history of racial segregation, which formally came to an end in 1994. Apartheid has transcended that origin to be codified into international law, initially in the United Nations (UN) International Convention on the Suppression and Punishment of the Crime of Apartheid, which entered into force in 1976, and subsequently in the 2002 Rome Statute, the instrument that created the International Criminal Court.
Article 7(2)(h) of the Rome Statute defines “the crime of apartheid” as “inhumane acts […] committed in the context of an institutionalized regime of systematic oppression and domination by one racial group over any other racial group or groups and committed with the intention of maintaining that regime.” The question of whether the regime governing Israel meets this legal definition remains fiercely contested.
Is Israel committing the crime of apartheid?
An expert report from 2017, commissioned by the UN’s Economic and Social Commission for Western Asia (ESCWA), concluded that the current Israeli regime is committing the crime of apartheid. That report was co-authored by the distinguished Yale-educated law professor and former UN Special Rapporteur Richard Falk, and former Assistant Director of the International Organisation for the Elimination of All Forms of Racial Discrimination Virginia Tilley.
The experts concluded their report by stating:
[…] that Israel has established an apartheid regime that dominates the Palestinian people as a whole. Aware of the seriousness of this allegation, the authors of the report conclude that available evidence establishes beyond a reasonable doubt that Israel is guilty of policies and practices that constitute the crime of apartheid as legally defined in instruments of international law.
Following publication of the report, ESCWA came under intense diplomatic pressure to denounce it. UN Under-Secretary General and Executive Secretary for ESCWA Rima Khalaf resigned in protest, saying “powerful member states” had pressured the world body and its chief with “vicious attacks and threats.” Despite attempts to squash it, the report and its conclusions remain freely available on the Internet, and the report continues to be widely cited.
Palestinian civil society organisations are increasingly united in using and applying the apartheid framework to understand and resist the regime that oppresses them. In submissions dated 10 November 2019 before the UN Committee on the Elimination of Racial Discrimination, a coalition of eight human rights NGOs including Al Haq in Ramallah, BADIL in Bethlehem, and the Palestinian Centre for Human rights in Gaza, stated:
Our organisations substantiate that Israel has created and maintained an apartheid regime over the Palestinian people as a whole, in violation of its obligations under international law, including Article 3 of ICERD, which enshrines the obligation that “States Parties particularly condemn racial segregation and apartheid and undertake to prevent, prohibit and eradicate all practices of this nature in territories under their jurisdiction.
Even staunch allies of Israel have begun applying the apartheid paradigm. In 2014, then US secretary of state John Kerry warned that Israel risked becoming an “apartheid state” if US-sponsored efforts to reach an Israeli-Palestinian peace settlement failed. Speaking in 2017, then British foreign secretary Boris Johnson stated “[…] you have to have a two-state solution or else you have a kind of apartheid system.” (paywall) Since then the situation has deteriorated even further, with the two state solution dead in the water, having been replaced by Israel’s explicit plan to formally annex large portions of already occupied Palestinian territory.
What happens if Israelis refuse to serve in the military?
Since 1967 Israel has been in military occupation of the West Bank, Gaza strip and East Jerusalem. That occupation forms a central component of its broader apartheid regime. 4.6 million Palestinians in the West Bank and Gaza are governed by military law, codified in orders issued by the commander of the territories and administered by Israeli soldiers and other designated arms of the occupying power. From this it is clear that Israeli soldiers are integral to the administration and enforcement of Israel’s apartheid regime.
Under Israel’s Defense Service Law, military service is compulsory for both men and women from the age of 18. Length of service is usually three years for men and two years for women. Conscripts are kept on reserve until the age of 51. Two groups have traditionally been exempted from the draft: ultra-Orthodox Jews (Haredi) and Palestinian citizens of Israel.
Those not exempted who refuse to serve are caught by Section 92 of Military Justice Law 5715-1955, which states that absence from service in the Israeli military is punishable by up to two years’ imprisonment. In a 1999 report Amnesty International cited the Druze Initiative, a Druze association which campaigns against Druze conscription, in support of the contention that about 5,000 Druze had, from 1956 up to that point, been imprisoned for refusing to serve in the Israeli military. Beyond that report, statistics on those imprisoned for conscientious objection are not readily available.
A subsection of Israeli society has long sought to resist conscription. The Shministim movement saw high school students publicly refusing to serve in the Israeli military due to their conscientious objection. The name ‘Shministim’ is a reference to a group of high school students who wrote a letter to the then Prime Minister Golda Meir expressing their concern about the Israeli occupation on the eve of their draft into the army. Today’s Shministim often serve time in prison for refusing to serve.
Do Israeli conscientious objectors qualify for international protection in Britain?
The term ‘asylum’ is defined by the 1951 Refugee Convention and its associated 1967 Protocol. A refugee, according to the Convention, is someone who is unable or unwilling to return to their country of origin owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group, or political opinion.
Asylum is a subcategory of ‘international protection’, which can derive from other sources. One such source is the European Convention on Human Rights, which was incorporated into British domestic law by the Human Rights Act 1998. Another source is the European Union (EU) Council Directive 2004/83/EC (the ‘Qualification Directive’), which created the additional category of ‘humanitarian protection’ to protect people from indiscriminate violence such as that found in warzones.
The House of Lords case of Sepet v Secretary of State for the Home Department [2003] UKHL 15 provides the starting point for determining asylum claims based on objection to military service. At paragraph [52] the judgment makes clear that punishment for conscientious objection might amount to persecution if the conditions under which service had to be performed “would require the applicant to commit war crimes or the like”.
- The ‘Qualification Directive’ is based on the Refugee Convention and has binding force in all EU countries apart from Denmark from 10 October 2006. In Article 9(2) it defines ‘Acts of Persecution’ as including: “(e) prosecution or punishment for refusal to perform military service in a conflict, where performing military service would include crimes or acts falling under the exclusion clauses as set out in Article 12(2)”. The exclusion clauses included commission of various crimes, including crimes against peace, war crimes, and crimes against humanity.
In the context of an enduring South African apartheid regime, the UN General Assembly on 20 December 1978 passed A/RES/33/165 (link) on the ‘Status of persons refusing service in military or police forces used to enforce apartheid’. The resolution calls on Member States “[…] to grant asylum […] to persons compelled to leave their country of nationality solely because of a conscientious objection to assisting in the enforcement of apartheid through service in military or police forces”. Though the Resolution has no binding force in English law, it nevertheless provides further authority for the proposition that Israelis should not be removed to face conscription to the Israeli military while it continues to engage in enforcing an apartheid regime.
In 1971 the International Court of Justice, when considering South Africa’s apartheid policy, found at pargraph [131] that “establish[ing …] and […] enforc[ing], distinctions, exclusions, restrictions and limitations exclusively based on grounds of race, colour, descent or national or ethnic origin which constitute a denial of fundamental human rights is a flagrant violation of the purposes and principles of the [UN] Charter.”
Taking the legal authorities together, and applying Sepet in particular, evidence shows that Israeli soldiers are required to commit war crimes. Such evidence can be found in the ‘Goldstone Report’ and the ESCWA report. This amounts to the sort of evidence that might form the basis of a claim for international protection by those who object to serving in the Israeli military. To the authors’ knowledge, the argument that Israeli conscientious objectors should qualify for asylum has yet to be tested by a British court or tribunal.
Conclusion
Israel’s rules on national service compel citizens, and Jewish and Druze Israelis in particular, to serve in a colonial occupation and to enforce an apartheid regime. They should have good claims for international protection in Britain and other jurisdictions, and can attempt to resist their return to Israel on that basis.
Israelis finding themselves facing conscription are welcome and encouraged to contact Franck Magennis in strict confidence. A practicing barrister and contributor to this article, he is happy to discuss the practicalities of claiming asylum and/or international protection.