Means to combat Israeli apartheid

Par Mireille Fanon Mendes France

In a global context where the post September 11th ideology retracts all strategic development issues and where racisms, including Islamophobia and particularly afrophobia, combined with paradoxical compromise-especially with political Islam through access to natural resources or strategic locations, create a profound confusion, source of all violence ; any international regulation, therefore, is rendered impossible. Palestine is paying a high price for this deregulation. Who talks about Palestine ? Who talk about Palestinian political prisoners ? Some people, convinced since long time ago, that this issue is essential to the future of the world.

One of the means ; we have is to strengthen the BDS campaign.

If BDS is a sensitive subject in France, it is mainly because the country is unable to assume the positions it has had with regard to certain parts of its population during the Second World War. The culpabilityt for this active or silent participation is impossible to overcome, but this is true for many European countries ; it orients all foreign policy in France, and this it orients all foreign policy in France, and this is reflected in the follow position of France with regard to US foreign policy. But we should add a phenomenon that started, a few years ago, with the questioning of the right to self-defense governed by Article 2§4 of the United Nations Charter but also by Article 52 of the same Charter.

In front of the efforts made by the Israeli State to ensure safety, most states began to recognize in Israel a reputation of effectiveness concerning security, which guarantees political benefits, among other it reinforces the idea that the « conflict » with the Palestinians is a case of terrorism, not of resistance army of the occupied against the occupier. The authority concerning security gives to the occupation a political authority and cements the idea that there is a « we » (Israel as a geographic and political vanguard of a West ensuring the European Modernity attacked by Islamists) and « them »(Arab, Muslim, Palestinian, Persian, Islamic ..) ; due to security, Israel is becoming one of this “us”.

Let us talk also about the economy. The State of Israel has successfully, around the world, exported methods and repressive police tactics tested in the occupation ; the number of demonstrations due to the devastation caused by the economic crisis during which the  » use of inappropriate and disproportionate force « through the » proliferation of CCW « is made. Movements like Black Lives Matters denounce this security trend worldwide, of which Israel is one of the main engines, this security trend worldwide, of which Israel is one of the main engines, as much with tactics than with arms.

Therefore, to talk of Israelization process of the world makes sense. Since September 9, 2001, there are Israeli methods and strategies have been implemented, thus, the wars in Iraq and Afghanistan, the Patriot Act, the security setting instead of freedoms, the massive spying on citizens considered a suspicious mass until the contrary is shown, Guantánamo, the Syrian quagmire … these are in place of successive policies that have led us to where we are.

Given this situation, from where we are, what can we do ?

We must find a way to end the “silencement” imposed by US hegemony in support of Israeli policy violating the inalienable rights of the Palestinian people and delegitimizing all norms of international law and of international humanitarian law

A/One mean to fight Israeli apartheid is to generalize the BDS movement.

In France, the government supported the establishment of an illegal policy by the Israeli state to the point that the French government considers the Representative Council of Jewish Institutions in France as its official partner. The Council is, in fact, a transmission belt of Israeli policy.

It is important to note that the Government is not obliged to develop a Zionist policy. To believe that the government is obliged to obey the CRIF would accredit “conspiracist” and anti-Semitic stereotypes according to which the Jews would, in essence, intended to seek to dominate the world.

This way of acting has some impact on the BDS movement. This movement is declared illegal, on the pretext that it would be anti-Semitic and therefore an obstacle to a so called “just peace” between Israelis and Palestinians.

The aim of these attacks is to intimidate and discredit BDS such a movement at the national level by ensuring that BDS is illegal.

So despite the determination of many French –more than 22% of the population affirm to be supportive of the Palestinian cause-, two judgments of the Court of Cassation stated that BDS is illegal, but these judgments have no application in respect of this case. Indeed, the question in these cases was the limit of freedom of expression ; but the question here is the obligation of the French government to respect international legality. Everyone will agree that if the products are illegal, they can not be sold.

In other case, it was declared the contrary, because it falls under the freedom of expression, many trials resulted in acquittals. The main question is, and only is, the obligation of the French government to respect international legality.

Recalling that each State has the obligation to enforce the content of the norms of humanitarian law, the ICJ, in its 2004 advice on the illegality of the wall said that “given the nature and importance of the rights and obligations involved, the Court believes that all states are in the obligation not to recognize the illegal situation resulting from the construction of the Wall in the occupied Palestinian territory, including in and around East Jerusalem. They are also under an obligation not to render aid or assistance in maintaining the situation created by such construction. It is also for all States to ensure, in accordance with the UN Charter and international law, to an end to the obstacles resulting from the construction of the wall, to the exercise by the people”.

This is exactly what the French state said in its submission to the ICJ, taking a position in the same direction, namely to give no effect to a recognized illicit objective fact : Once, it is internationallyillicit, the fact constituted by the construction of the wall in occupied Palestinian territory also has legal consequences for third States and international organizations. These include required not recognize the legality of the situation created by the plot borrows the book.

These established principles of international law are more directly applicable via the Community law. Law t from the European institutions is integrated into the legal systems of the Member States, who are obliged to respect it [1]. In Kadi and Al Barakaat [2], case of 3 September 2008, the Court of Justice of the European Union established the principle of the rule of law throughout the European area. The European Court of Human Right has repeatedly expressed in the same direction [3].

If a national rule is contrary to a provision of EU law, the authorities of the Member States must to uphold the European layout, the primacy of European law over national law being absolute [4]. The recognition of the primacy of EU law over national legislation stems from the Nicolo‘s jurisprudency [5], and plays for regulations [6] the directives [7], and the general principles established by the Court of Justice [8].

So much so, the originating products occupied territories can only be exported under a certificate of origin issued by the Palestinian authorities. The little arrangement found in 2015 by a special labelling, can have no legal value because it seeks to give a dressing legality of colonization. Ignoring the obligation not to recognize the illicit act, the decision of the commission made in customs matters can no effect in terms of fundamental principles of international law.

Then, everyone will agree that if the products are illegal, they can not be sold.

We have to give, to the Council of Human UN Human, all the necessary information as it has decided Thursday, March 24 to draw up a blacklist of companies operating in the territories occupied by Israel.

No matter that the Netanyahu government has put in place, within the Ministry of strategicAffairs, a structure to actively fight against BDS, with a mission to collect all relevant information on the practice of BDS, analyze its activities, know its key activists and, above all, to establish an « anti-boycott » strategy with the help of some departments of Foreign Affairs.

Nevertheless, the victories of the BDS campaign in France are not to be minimized.

BDS France contributed, with others, to the bankruptcy of the Israeli company Agrexco, to victories against Sodastream, the breach of the agreement between Orange and Israeli society Partners Communications, the full withdrawal of Veolia in Israel.

Israel desperately tries to ban BDS in various countries or to limit that campaign, not only in France but also in other countries including UK, Canada and United States. This country is currently negotiating a treaty of economic free trade with the European Union.

There is talk of including a clause prohibiting any economic negotiation between a US partner and a European partner discriminating Israel » or that would support, participate or would promote an initiative of Boycott, Divestment and Sanctions against Israel. Basically, the formal and explicit rejection of BDS would be a prerequisite to signing of TTIP.

BDS is a strong commitment to justice, freedom and the end of colonization for all Palestinians in the occupied territories, of those living in Israel and those who are in exile for 1948.


B/ Second mean to fight the Israeli apartheid is to utilize the universal competency where it is possible

Universal competency, without returning to the historical reasons for its establishment, has been exercised, for example by the Israeli state in 1961, during the Eichmann’s trial ; it stated that « the right of Israel to chastise the accused comes from a universal source – patrimony of all humanity – which gives the right to prosecute and punish crimes of this nature and of this nature, because they hit the international community […], the State acting legally is doing that on behalf of the international community ».

This reminder is interesting because this State, that in 1961 claimed to be acting « on behalf of the international community », was already at that time and since 1948 against the rule of law imposed on the entire international community.

Today, if the Palestinian state really wanted to prosecute those responsible for many war crimes that the Israeli state was responsible for the Nakba, the ICC put forward arguments inadmissible, as it has done in diferent cases carried by various NGOs that submitted complete applications on behalf of Palestinian victims who had given their mandate. Nothing prevented the ICC to accept files transmitted to the Prosecutor.

Nothing, except politician politic of hegemonic nature brandishing its threats on every State, especially on the Palestinian state economically dependent on foreign financial support, that would make a complaint against the State of Israel.

After having acted on behalf of the international community, the Israeli state has become one of the greatest war criminals with the help of the international community.

In France, extraterritorial jurisdiction is regulated by the Code of Criminal Procedure, under the Article 689 that provides a general mechanism, « the authors or accomplices of crimes committed outside the territory of the Republic may be prosecuted and tried by French courts when they are on French territory » for, among other crimes of torture or crual, inhuman or degrading treatment [9] …

This openess gives the ability to prosecute war crimes of torture or inhuman treatment if only they are on French territory. For this, it is necessary that the Palestinian victims with double citizenship file complaints before a judge in France. Once, accepted their complaint the judge must issue an international arrest warrant against these crimes.

It is regrettable that the development of universal jurisdiction is recent and still limited. However, some countries, in addition of France, make use : Argentina, Belgium, Canada, Denmark, Finland, Germany, Netherlands, Norway, Spain, Senegal , South Africa, Sweden, Switzerland, UK, USA.

Therefore all have the ability to prosecute Israeli perpetrators of torture or crual, inhuman and degrading treatment. What can be done in France can be done in these countries.

A coordinated international campaign of sensibilzation on this topic must be organized in these particular countries, in parallel and simultaneously, as soon as Palestinian plaintiffs are identified.

To generalize BDS campaign and to utilize the universal competency where It is possible is a moral and political duty.

Just as it was put an end to apartheid in South Africa, putting an end to Israeli apartheid to finally open the doors of the prisons where women, children and men are held illegally ; all fighting for their right to self-determination and the end of colonial yoke.


[1] CJCE, Costa contre Enel du15 juillet 1964

[2] CJUE, Affaires jointes C-402/05 P et C-415/05 P, Yassin Abdullah Kadi et Al Barakaat International Foundation c. Conseil de l’Union européenne et Commission des Communautés européennes, § 283 et 335

[3] CEDH, Parti communiste unifié de Turquie et autres, 30 janvier 1998, n° 133/1996/752/951, § 45 ; voir aussi : CEDH, 26 juin 2007, Ordre des barreaux francophones et germanophone e.a., C-305/05, Rec. p. I-5305, point 29 et jurisprudence citée ; CEDH, Ayse Ozturk c. Turquie, no 24914/94, 15 octobre 2002, § 64 ; CEDH, Loizidou c. Turquie du 23 mars 1995 (exceptions préliminaires), série A n° 310, p. 27, § 75

[4] CJCE, 17 décembre 1970, Internationale Handelsgesellschaft, C/ 11-70

[5] CE, Ass., 20 octobre 1989, n° 108 243

[6] CE, 24 septembre 1990,M.X, n° 58 657

[7] CE, Ass. 28 février 1992, S.A. Rothmans International France et S.A. Philip Morris France, n° 56 77

[8] CE, 7 juillet 2006, Société Poweo, n° 289 012 ; CE, 27 juin 2008, Société d’exploitation des sources Roxane, n° 276 848)


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