جستجوی مقالات مرتبط با کلیدواژه "تبعیض نژادی" در نشریات گروه "فقه و حقوق"

The Israeli-Palestinian conflict remains a complex and intractable dispute with profound human rights implications. The dominant approach, grounded in the legal framework of humanitarian law and the two-state solution, has yielded limited progress towards resolving the conflict or securing fundamental Palestinian rights. This paper argues that an alternative framework, based on anti-discrimination law principles, offers a more comprehensive and effective lens for analyzing the conflict and pursuing a just resolution.

The prevailing narrative in Western discourse portrays Israel as a legitimate state established in accordance with international law and bolstered by the UN partition plan in 1947. This narrative emphasizes the Jewish right to self-determination within the newly created state. Palestinians, under this view, are either refugees who should be resettled elsewhere or an occupied population with the future right to establish their own state alongside Israel (the two-state solution).
However, a growing body of scholarship and activism challenges this dominant narrative. This counter-narrative argues that Israel's creation constituted an act of dispossession and displacement of the Palestinian people. It views Israel as an apartheid system marked by systematic discrimination against Palestinians on the basis of race and ethnicity. This systemic discrimination manifests in the denial of Palestinian citizenship rights, including the right to self-determination, voting rights, freedom of movement and expression, and equal access to resources and property ownership.

The dominant approach to the conflict relies heavily on the framework of humanitarian law, particularly the Fourth Geneva Convention. This framework recognizes the occupied status of the Palestinian territories and mandates that Israel, as the occupying power, uphold certain basic rights of the Palestinian population. While these principles are crucial for protecting Palestinians from the immediate harms of occupation, the framework has significant limitations.
Firstly, the humanitarian law framework focuses primarily on regulating the conduct of hostilities and protecting civilians during armed conflict. It has limited capacity to address issues of systemic discrimination and denial of fundamental rights, such as citizenship and self-determination, that lie at the core of the conflict.
Secondly, the humanitarian law framework treats the situation as a temporary one. Its ultimate goal is the cessation of hostilities and eventual withdrawal of the occupying power. It offers a limited vision for a final solution that guarantees lasting peace and full recognition of Palestinian rights.

The anti-discrimination law approach offers a more comprehensive framework for analyzing the Israeli-Palestinian conflict. It draws from international human rights instruments, including the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD), to examine the denial of Palestinian citizenship rights. This approach highlights the structural inequalities embedded within the Israeli system that disadvantage Palestinians based on their national origin and ethnicity.
By focusing on citizenship and equality, the anti-discrimination law approach challenges the legitimacy of a system that denies basic rights to a significant portion of its population. It sheds light on the ways in which Israel maintains a Jewish majority state through discriminatory policies and practices in areas such as land allocation, movement restrictions, and access to social services.

Comparisons have increasingly been drawn between the Israeli-Palestinian situation and the former apartheid regime in South Africa. Both cases share features of racialized systems of domination, where one group enjoys privileges and political power while the other is marginalized and denied basic rights. The South African case provides a historical precedent for dismantling an apartheid system and transitioning to a more inclusive democracy based on equal citizenship.
The international community's successful application of boycotts, divestment, and sanctions (BDS) against South Africa demonstrates the effectiveness of collective action in pressuring a discriminatory state to change course. Advocates for Palestinian rights increasingly utilize the BDS movement as a tool to hold Israel accountable for its violations of international law and human rights principles.

While the anti-discrimination law approach offers a more promising framework for addressing the Israeli-Palestinian conflict, challenges remain. One key challenge is the entrenched power dynamics and the strong political and financial support Israel receives from some Western countries.
Secondly, achieving a just and sustainable solution will require a willingness on both sides to compromise and negotiate in good faith. Palestinians must be able to exercise their right to self-determination, while legitimate Israeli security concerns must also be addressed.

The adoption of an anti-discrimination law approach can be instrumental in guiding international efforts to resolve the conflict. This approach necessitates:
Increased international pressure:The international community needs to hold Israel accountable for its violations of Palestinian rights and international law. This includes actively supporting measures such as the BDS movement and imposing targeted sanctions.
Meaningful negotiations:A genuine commitment to peace requires a return to meaningful negotiations based on the principle of a two-state solution with land swaps, or a single democratic state

Following Qatar’s diplomatic crisis in 2017, the UAE implemented a series of measures against Qatar. In response, Qatar filed an application against the UAE at the International Court of Justice (ICJ), citing a violation of the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD) and claiming racial discrimination based on the national origin of Qataris. In its order dated July 23, 2018, the ICJ, in accordance with Article 22 of the ICERD, held primary jurisdiction to handle the case. The Court determined that the dispute between the parties was related to the interpretation or application of the Convention. Previous descriptive–analytical examinations show significant disagreements about the scope of racial discrimination during preliminary negotiations, with the term national origin being the focus of debates. It can be inferred that national origin, as included in paragraph 1 of Article 1 of the ICERD, entails discrimination based on current nationality. In this respect, the present research aimed to investigate the relationship between racial discrimination based on national origin and discrimination based on current nationality as elaborated in the ICERD.

While many studies have examined the ICERD and its committee, a conspicuous gap exists in the available literature concerning racial discrimination based on national origin. Moreover, given that ICJ judgment was issued in 2021, there is no serious monograph or article on this specific subject, except a few tangential studies in the legal scholarship. The two articles closely related to the topic are: “Application of the International Convention on the Elimination of All Forms of Racial Discrimination (Qatar v. United Arab Emirates): So Far, So Good?” (Owie, 2020) and “The Role of Committee on the Elimination of Racial Discrimination in the Development of Concepts and Provisions of International Convention on the Elimination of all forms of Racial Discrimination” (MirAbbassi & Hassani, 2020). Materials and MethodsThe current study relied on a descriptive–analytical method, using library research to collect the data from various sources.

Research indicates significant differences in the scope of racial discrimination between the premilitary negotiations and the eventual inclusion of the term national origin in Paragraph (1) of Article (1) of the Convention. It can be inferred that this term in the Convention includes discrimination based on current nationality, hence an instance of national origin. The ICERD, which is the main international human rights document combating racial discrimination, defines racial discrimination and outlines its scope and instances. The definition comprises two elements. First, it shall involve “any distinction, exclusion, restriction or preference . . . which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of human rights and fundamental freedoms” (UN General Assembly resolution 2106, p. 2). In other words, actions must lead to discriminatory behavior. Second, discrimination shall be based on prohibited grounds, including “race, colour, descent, or national or ethnic origin” (UN General Assembly resolution 2106, p. 2). However, ambiguities persist regarding the scope and interpretation of the term national origin, as one of the prohibited grounds in the Convention. Disagreements have actually existed among state representatives since drafting the Convention, leading to the ongoing challenges and ambiguities.The Court’s narrow interpretation of national origin and the necessity to address the impact of measures taken against Qatar have drawn criticism. The measures taken by the UAE against Qatari nationals can be considered unilateral coercive measures, violating their rights such as the right to freedom of movement and freedom of communication. Such adverse and negative effects are deemed illegal, as acknowledged by the international documents and reports by the UN Special Rapporteur on the negative impact of the unilateral coercive measures on the enjoyment of human rights. Moreover, since the Convention aims to eliminate all forms of racial discrimination, confirming that the term national origin encompasses current nationality aligns with the Convention’s overall purpose. Conversely, dissenting interpretations that exclude current nationality from the scope of the Convention contradict and undermine the purpose of the ICERD.  6.

Despite Qatar’s failure in this case, another legal opportunity remains, that is, the decision of the Committee on the Elimination of Racial Discrimination (CERD). In parallel with similar facts, Qatar filed an application to the CERD. In contrast to the ICJ, the committee upheld its jurisdiction in Qatar’s case against the UAE, which is currently under consideration. The Court’s non-compliance with the CERD’s proposal and the ensuing divergent stances of the two judicial and quasi-judicial bodies introduce a new dimension to the issue. In conclusion, the ICJ shall be recognized as the UN’s primary judicial organ with the authority to settle disputes over the interpretation of the Convention. However, the conflicting views between the ICJ and the CERD, particularly following the Qatar–UAE dispute, necessitate judicial dialogue between the two bodies.

Racial discrimination, in a broad sense, involves the assertion of superiority of certain individuals over others based on their race. This phenomenon is examined across various disciplines, including politics, sociology, law, psychology, and ethics. Using a descriptive-analytical method and documentary analysis, this research explores the crime of racial discrimination from the viewpoints of Islamic jurisprudence and international criminal law.   The article begins by separately investigating the foundational principles prohibiting racial discrimination in Islamic jurisprudence and international criminal law. Subsequently, it delves into the constituent elements of the crime, namely the legal, material, and spiritual elements. Each element's components are scrutinized in connection with racial discrimination from both the perspectives of international criminal law and Islamic jurisprudence.   The punishment of the perpetrator is the concluding aspect of this exploration into criminal incidents. The article addresses the implementation of the crime of racial discrimination, discussing the guaranteeing of its enforcement in international criminal law and Islamic jurisprudence concerning those who commit the crime of discrimination. Finally, a comparative evaluation of the differences and similarities in the treatment of the crime of racial discrimination in Islamic jurisprudence and international criminal law is presented.

The study of the rights of minorities and ethnic groups in the Constitution of the Islamic Republic of Iran shows that despite the lack of a clear and coherent model and the lack of common models for attracting and endorsing the participation of minorities in this legal document, the rights of these groups have been raised and preserved in various ways. . In the constitution of our country, three ethnic groups, religious minority and religious minority, are distinguished from each other, and while the ethnic minority can be combined with two other groups, rights have been proposed for each of them, which can be combined together. In addition to the Muslim majority in Iran, there are non-Muslim minorities who, being Iranian citizens, are considered members of the nation. This article seeks to explain the special rights of religious minorities in the Iranian political system that religious minorities, in order to enjoy legal equality, to preserve and protect their religious cultural characteristics, want government-sponsored measures that are addressed in Iranian law. In this article, we intend to analyze the rights of the religious minority community of Iran in contemporary history, which is also a method of collecting information through libraries and taking notes.

Incitement to racial discrimination is a conflict point between freedom of expression and principle of non-discrimination which both are the main core of international human rights law. Principle of non-discrimination is fundamental in human rights law and any form of discrimination including racial discrimination effects enjoyment and fulfilment of all human rights. Historical experiences including world war 2 shows that incitement to racial discrimination creates a proper atmosphere to commit crime against racial groups. Freedom of expression is also a fundamental right and plays a key role in finding the truth, public partnership and enhancing tolerance. Although it is not an absolute right and it can be a subject of some limitation in certain circumstances. Incitement to racial discrimination is a legitimate limitation of freedom of expression which is prohibited in International Convention on Elimination of All Form of Racial Discrimination (1965). This convention asks state parties to criminalize incitement to racial discrimination in their domestic law. This article studies conditions of realization of incitement to racial discrimination and the way which these expressions must be limited. The main question is that how and up to what point prohibition of incitement to racial discrimination can limit freedom of expression. Due to importance of freedom of information and preventing unproportioned limitation of freedom of expression, there should be accurate criteria for limiting expressions. Although CRC committee tried to introduce criteria for incitement to racial discrimination, they are not accurate. Expansion of race phenomenon made it difficult to distinguish these expressions.