A/HRC/16/72 instances disconnected from broader consequences that are either designed by intention or the natural outcome of accumulating circumstances (so-called “facts on the ground”). These concerns about language are accentuated because Israel is the stronger party in diplomatic settings and generally enjoys the unconditional support of the United States of America. Indeed, unlawful Israeli behaviour that starts out as “facts” have over time been transformed into “conditions”, or in the words of the American Secretary of State, Hilary Clinton, “subsequent developments” that are treated as essentially irreversible. Such transformation is true of several aspects of the occupation, including at a minimum the settlement blocs and accompanying infrastructure of roads and security zones, as well as the separation wall. To call appropriate attention to the effects and implications of these unambiguously unlawful patterns, and their somewhat perverse ex post facto attempted “legalization” and “normalization” requires stronger expository language to better understand the unbridled assault upon Palestinian rights and prospects for meaningful selfdetermination. It is against this background that this report has decided to employ such terms as “annexation”, “ethnic cleansing”, “apartheid”, “colonialist” and “criminality” as more adequately expressing the actual nature of the situation in the occupied Palestinian territories. Such labels can be perceived as emotive, and admittedly require a finding by a court of law to be legally conclusive. However, such language, in the Special Rapporteur’s view, more accurately describes the realities of the occupation as of the end of 2010 than the more neutral-seeming description of factual developments that disguises the structures of this occupation which has undermined the rights under international law of the Palestinian people for 43 years. 8. Against this background, the Rapporteur deems it appropriate at this time to renew the call of the former Special Rapporteur on the occupied Palestinian territories, John Dugard, for a referral of the situation to the International Court of Justice for an authoritative decision as to whether, “elements of the [Israeli] occupation constitute forms of colonialism and of apartheid”.6 It should be emphasized that the crime of apartheid is no longer attached to the racist policies of the South African regime that generated the International Convention on the Suppression and Punishment of the Crime of Apartheid. It is now a crime associated with an “institutionalized regime of systematic oppression … by one racial group over any other racial group … committed with the intention of maintaining that regime”.7 The crime of apartheid is also treated as “a grave breach” of article 85, paragraph 4 (c), of the First Geneva Protocol, an international treaty with 169 parties, and widely regarded as universally binding because it is declaratory of customary international law. As will be illustrated in the present report, the dual discriminatory structure of settler administration, security, mobility, and law as compared to the Palestinian subjugation seems to qualify the long Israeli occupation of the West Bank as an instance of apartheid. The referral to the International Court of Justice should also seek clarification as to whether the pattern of continuing unlawful settlement, manipulation of residence credentials, expulsions in East Jerusalem qualify as “ethnic cleansing” and, if so, how this behaviour should be viewed from the perspective of the international law of belligerent occupation. 9. It is also important to underscore what should be self-evident, namely, that Israel has State responsibility for all violations of international humanitarian law in the territories under occupation, above all, for the settlements. State responsibility cannot be evaded by delegation or failure to deal with violations of Palestinian rights in the occupied territories arising from the behaviour of municipal or private sector actors, as in connection especially with claims of unlawful settlement building and ethnic cleansing allegations in East Jerusalem. 6 7 A/HRC/4/17, summary, tenth paragraph. See Rome Statute of the International Criminal Court, article 7, para. 2 (h). 5