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Academic Boycott of Palestinian Students: A Wolf in Sheep’s Clothing?
Isabelle Swerissen
Reproduced, by permission, from FFIPP News November 2009.
For most students, studying abroad has become an indispensable part of their academic career. Whether it is an exchange to the golden beaches of Australia or an LLM at a prestigious university in London, the world is at our feet. For Palestinian students in Gaza, however, choices are few. Since Operation Cast Lead in January 2009, Gaza’s universities have either been partially destroyed or shut down. The only remaining option is to study elsewhere. Unfortunately, Palestinian students from Gaza are prevented from studying abroad. The Israeli authorities have even banned them from attending universities in the West Bank, which is Palestinian territory. Consequently, many studies much needed (e.g. occupational therapy, medicine, speech therapy, dentistry, physiotherapy) are not available at all. This restrictive policy has legal implications, both under international humanitarian law and international human rights law. As will become painfully clear from this discussion, the sheep’s clothes are in fact security reasons, covering up an academic boycott of Palestinian students from Gaza.
Although the Gaza Strip and the West Bank are not connected in geographical terms, the Oslo Peace Accords stipulate that they constitute “a single territorial unit.” The 1994 Cairo Agreement and the 1995 Interim Agreement, signed by both the Israelis and the Palestinians, state that in light of the separation between the Palestinian Territories and in order to connect them, there shall be a “safe passage” route across Israeli territory. In October 1999, the safe passage route was opened. Less than a year later, with the outbreak of the second intifada in September 2000, Israel closed the safe passage route in contravention of its Oslo obligations. Making an already bad situation even worse, the Israeli government’s designation in September 2007 of Gaza as “hostile territory” and the most recent military operation have paved the way for new heights in restrictive policy. All human traffic from the Gaza Strip is now blocked, with the exception of a small number of people defined by the military as “humanitarian cases”. In practice, this policy means that Palestinian students have virtually no chance to leave the Gaza Strip, even after having been accepted to universities in the West Bank.
The West Bank and the Gaza Strip are often referred to as the Occupied Palestinian Territories. Yet, the existence of a state of occupation is not unequivocally acknowledged by Israel. This position is hardly surprising, since the occupying power owes extensive obligations towards the civilian population under its control, for example with regard to freedom of movement. The focus of this article being on international law rather than Israeli politics, the standpoint of the International Court of Justice is of particular relevance. As far as the West Bank is concerned, the ICJ has ruled that “all these territories (including East Jerusalem) remain occupied territories and Israel has continued to have the status of occupying Power”. There is more controversy regarding the legal status of the Gaza Strip, especially after Israel’s formal withdrawal from the area in September 2005. In reality, it still controls the border crossings, the skies, the territorial waters, the population registry and the taxation system. In light of this comprehensive policy of control, combined with the ability to restore its military ground presence in Gaza at any time, the following part will assume that Israel continues to occupy the Gaza Strip. International obligations are therefore imposed upon Israel under the law of occupation.
The law of occupation is part of international humanitarian law, better known as the law of war. The basic legalistic framework for this branch is found in the 1907 The Hague Convention Regarding the Laws and Customs of War on Land and the 1949 Fourth Geneva Convention Relative to the Protection of Civilian Persons in Time of War. The most relevant provision in this context is Article 27 of the Fourth Geneva Convention, which explicitly authorizes restrictions on the freedom of movement by taking “such measures of control and security in regard to protected persons as may be necessary as a result of the war.” Where security reasons so demand, the occupying power thus has the power to restrict the movement of Palestinian students from Gaza. However, those who purportedly pose a ‘security threat’ are all Palestinian men and women aged between 16 and 35, effectively excluding all Gazan students from studying in the West Bank. Moreover, Israeli authorities refuse to examine the security record of each student individually, claiming that their age accords them a ‘dangerous profile’ a priori. That presumption is perpetuated and becomes irrefutable so long as Israel fails to conduct an individual examination of the personal circumstances of each student seeking to travel between Gaza and the West Bank.
There have also been accounts of Palestinian students who, even after Israel determined they did not pose a security threat, were prohibited from studying in the West Bank. Instead, these students have not been granted permission to leave Gaza due to incompliance with the procedure’s stringent criteria, which, for the most part, remain unclear or are still under review. This policy, which places unreasonable obstacles in students’ paths that are not related to security reasons, is in clear violation of Article 27 and unmistakably reveals Israel’s true intention. It has decided to prevent students from leaving Gaza for educational purposes not because of claims of security risks, but rather as part of a policy of collective punishment. Article 33 of the Fourth Geneva Convention expressly forbids punishing students and other civilians for political circumstances beyond their control.
International humanitarian law, which is applicable in a situation of occupation, can be complemented by international human rights law. The latter traditionally applies to everyone within the jurisdiction of a state in times of peace, not in times of armed conflict and/or occupation. However, human rights are increasingly invoked to sufficiently protect the civilian population in the Occupied Territories. In this specific context, where the right to freedom of movement and the right to education are at stake, both of which have a solid foundation in several human rights instruments, the applicability of human rights law is particularly significant. It is therefore important to observe that the convergence between the two fields of law is confirmed in the jurisprudence of the various international bodies, such as the previously mentioned ICJ. In two groundbreaking decisions, it determined explicitly that international human rights law applies to occupied territories.
Given that human rights treaties are indeed applicable to the West Bank and the Gaza Strip and that these territories constitute “a single territorial unit” pursuant to the Oslo Peace Accords, the question is what importance this has for the right to freedom of movement respectively the right to education. The right to freedom is movement is firmly established in the International Covenant on Civil and Political Rights. Israel is a state party to the ICCPR and is therefore legally bound to undertake the obligations of the ICCPR. Article 12 determines that “everyone lawfully within the territory of a State shall, within that territory, have the right to liberty of movement and freedom to choose his residence”. The Human Rights Committee, which is the monitoring body for the implementation of the ICCPR, further explains that, “liberty of movement is an indispensable condition for the free development of a person. It interacts with several other rights in the Covenant.” There are, however, permissible limitations to the freedom of movement.
In the third paragraph of Article 12, the ICCPR provides for exceptional circumstances under which the right to freedom of movement may be restricted. This provision authorizes the state to restrict this right only to protect national security, public order, public health or morals and the rights and freedoms of others. Again, we are faced with the reference to security reasons, of which Israel has made eager use to restrict the movement of Palestinian students from Gaza. As explained earlier, the restrictions are, firstly, not explained by specific security concerns regarding specific individuals and, secondly, not always the reason why Palestinian students from Gaza are prohibited from studying in the West Bank. Even if the motivation for this restrictive policy lay in legitimate security considerations, the prohibition completely violates the principle of proportionality. This principle prescribes that any restriction must be appropriate for the attainment of the ends authorized (the security objective in this case). However, the denial is arbitrary and sweeping, the criteria for denial are often unclear and there are no individual investigations to determine if the individuals indeed pose a security threat. This extreme lack of proportionality inevitably leads to the conclusion that Israel’s policy with regard to Palestinian students from Gaza flagrantly breaches the right to freedom of movement.
One of the rights that freedom of movement interacts with is the right to education. Article 13 of the International Covenant on Social, Economic and Cultural Rights, to which Israel is as state party as well, states that “the States Parties to the present Covenant recognize the right of everyone to education”. It comprises several forms and levels of education, including higher education. The Covenant expressly provides, in the second paragraph of Article 13, that “with a view to achieving full realization of this right [...] higher education shall be made equally accessible to all on the basis of capacity, by every appropriate means”. In the commentary on this article, the elements of non-discrimination and physical accessibility have been recognized as part of the right to higher education.
The fundamental principle of non-discrimination requires education to be accessible to all, especially to the most vulnerable groups, in law and in fact. Palestinians in general are viewed as a marginalized group, with the Palestinians from Gaza being especially vulnerable. The second element, physical accessibility, demands for education within safe physical reach, either by attendance at some reasonably convenient geographic location or via modern technology. In March 2008, with the cooperation of the Islamic University in Gaza City, ten Palestinian students from Gaza graduated from Bethlehem University via video conference facility. Apart from this being a less than desirable way to study, it is no longer possible due to Israeli aerial attacks on the Islamic University during Operation Cast Lead in January 2009. These bombardments are symbolic of the total collapse of Gazan academic life. In light of the right to education and the designation of the West Bank and the Gaza Strip as “a single territorial unit”, students from Gaza should therefore be allowed to study at any of the West Bank universities.
Nelson Mandela once spoke these famous words: “education is the most powerful weapon which you can use to change the world.” Although this may be an overly idealistic thought in the context of the Israeli-Palestinian conflict, it would be detrimental to the future of Palestinian society to deny the pursuit of higher education. Even more important, the restrictive policy could be equally damaging to Israeli society. After all, ignorance is the best breeding ground for fundamentalism. While this is arguably the most persuasive argument against the restrictive policy of Israeli in relation to Palestinian students from Gaza, it is a non-juridical argument. Rather, the focus of this article has been on the legal aspects of the denial of the right to freedom of movement and the right to education, both under international humanitarian law and international human rights law. A discussion of these aspects can only lead to one conclusion: Israel’s restrictive policy is legitimized by de jure security reasons, which, by their unjust use, come down to a de facto academic boycott of Palestinian students from Gaza.
Isabelle Swerissen is currently pursuing a Masters in European Private Law with a minor in International Relations, after having finished a master International Public Law. She is a student member of FFIPP.