This post is a modified and expanded version of an article published by Al Jazeera a few days ago, and it also a continuation of a series of posts on the general theme of a jurisprudence of conscience.
An allegation of apartheid, like genocide, stands for something evil in the public mind, and is associated with the kind of institutionalized racism that owes its name to the governing process of South Africa under white rule. But the crime of apartheid was generalized on the basis of this historical background, and has the status of an international crime. Directing such an allegation at Israel for its overall treatment of the Palestinians is a provocative accusation, but one that increasingly reflects a consensus among objective observers. But it is also the kind of issue that is evaded by established international institutions, including the International Criminal Court (ICC), for at least two reasons: Israel is part of the West, and the West in general enjoys a de facto exemption from accountability under international criminal law; Israel is geopolitically insulated from formal procedures of accountability by the United States and some of its European allies.
For the above reasons if the crime of apartheid associated with Israeli oppression of the Palestinians is to be exposed in a convincing manner, it will depend on an extraordinary procedure of inquiry, one that is constituted outside of the formal operations of the state system, which includes the United Nations and ICC. For this reason, it is entirely appropriate that a tribunal established by free citizens should examine this question under auspices that may not have normal ‘judicial’ credibility and capabilities, but do possess ‘moral’ and ‘political’ credibility. The Russell Tribunal on Palestine (RToP), in my judgment, possesses this moral and political credibility, and thereby makes a courageous and necessary contribution in the struggle to achieve global justice, and close somewhat the law-defying loopholes granted to the cruel purveyors of geopolitics.
Against such a background it is my belief that the recent finding of the Russell RToP that the state of Israel is guilty of the crime of apartheid in relation to the Palestine people should be taken with the utmost seriousness by all those who affirm human solidarity and care about making visible the long ordeal of a suffering and vulnerable people. This finding, and the conditions that give rise to it, are conspicuously ignored by Israel and the United States and Europe, as well as by most media and by the United Nations. Such neglect is partly a result of Israel’s geopolitical weight and partly the widely shared opinion that if a decision on law and rights is rendered by a procedure that is not constituted by governments or international institutions it deserves no respect even if it is the most reliable available means to reveal some ‘inconvenient truths.’
I firmly believe that the Russell Tribunal has credibility as a venue for truth telling despite being established and funded by citizens whose concern about the denial of Palestinian rights and Israeli defiance of international law was not a secret. RToP makes no pretense of being ‘a court’ with enforcement powers, but it does deny allegations of ‘cooking the books’ because its organizers were undoubtedly confident that a verdict of guilt would be rendered, given the fact that most of those sitting in judgment were already on record as critics of Israeli treatment of Palestinians and denial of Palestinian rights under international law. Indeed it is this knowledge in advance, based on abundant and uncontested evidence, which best explains the motivations for mounting the extraordinary organizational effort to raise the funds and handle the logistics required to organize a proceeding of this type without relying on an established bureaucracy. This tribunal made no attempt to discover the truth, although representatives of those accused were formally invited to present their defense, but rather it considers its role to be one of documenting the truth. Israel has made no secret of the policies, laws, and practices that were presented to the panel of jurors in Cape Town, although it characterizes them differently, hides and obscures their application, and insists on a different set of conclusions.
It should be understood that RToP is an ambitious undertaking that has already convened sessions in Barcelona and London, and plans a fourth and final session in New York City during the coming year. This third session in Cape Town is notable for its focus on allegations of apartheid, while the earlier sessions had emphasized the Palestinian core right of self-determination and the criminal accountability of corporate involvement in Israeli violations of international law in their treatment of the Palestinian people.
Bertrand Russell’s Historic Initiative
It was the celebrated British philosopher, Bertrand Russell who suggests in his autobiography that he felt that the world of the mid-1960s needed to know about the Vietnam War in a manner free from self-serving slant and Cold War propaganda, and so he invited leading moral authority figures of global stature to take part in an unrestricted inquiry into the alleged criminality associated with the American role in Vietnam. In Russell’s opening statement at the International War Crimes Tribunal convened in 1966 to investigate the atrocities by the United States in Vietnam, he declared that the initiative had no clear precedent but that such openness was helpful as it allowed the tribunal “to conduct a solemn and historic investigation, uncompelled by reasons of State or other such obligations.”
Russell ended these remarks by making clear the distinctive objective of the undertaking: “May this Tribunal prevent the crime of silence.” In effect, the narration of the criminality is undertaken not primarily to speak truth to power, which is generally deaf to voices from below, at least until they mount a revolutionary challenge, but to speak truth to people, awakening public opinion from its apathy to the responsibilities of being human (concern for the victimized other) and duties as citizens of a free society to ensure that a government acting in its name upholds the law and is not guilty of or complicit in international criminality. Russell expressed this orientation as embodying very grand, some would say grandiose, expectations: “our task is to make mankind bear witness to these crimes and to unite humanity on the side of justice in Vietnam.”
Actually, the outcome of the original Russell Tribunal was virtually unreported at the time (except derisively), and later its work was known only to small coteries of anti-war activists and intellectuals, and even they were often confused at the time about whether such a seemingly one-sided unauthorized event was helpful to the general cause of peace and justice in the world. With the passage of time, the Russell experience has gained in influence and reputation, but it remains an exaggeration to claim, as Marvyn Bennum does in an otherwise excellent article, “Understanding the rational, logic and procedures of the Russell Tribunal,” Cape Argus, 31 Oct 2011] that the Russell tribunals had “a profound impact on world opinion,’ although this historic initiative provided the charismatic example in most respects for subsequent enactments of such an approach, including the RToP.
Unfortunately, although Russell’s words are often invoked as the core justifying claim, the reality after some 45 years is that such undertakings, and there have many since this first one, are rendered almost mute by a media that mostly thinks and feels like a state, which is especially so when the allegations are directed at the United States, a constitutional democracy that sits firmly at the pinnacle of geopolitical power and influence, and although declining at a rapid rate, remains the leader of the last hurrah of the West centric world order. The wall of silence erected by the West does not crumble easily if sustained by the combined corporate and military muscle at the disposal of Washington and its various collaborators in Europe and around the world.
As Russell said in 1967 at the second session of the Vietnam Tribunal, “[w]e are not judges. We are witnesses.” This witnessing is meant to be more politically effective than mere pronouncements of injustice and criminality, and has gradually in recent years become more so. As the state system has itself moved to criminalize certain forms of conduct, and even to establish an International Criminal Court, it seems more plausible for representatives of civil society to demand that the law should be applied to the strong as well as the weak, and to take action of its own in the event of a failure to do so. This makes the type of initiative associated with RToP less of a usurpation of governmental functions. It is an expression of global democratic entitlement and transnational human responsibility: persons acting on their own to do and say what institutions of the state are failing to do and say, that is, assess charges of criminal guilt.
It may seem to be the case that the Vietnam War Crimes Tribunal gave the game away at the outset by putting the words “investigate the atrocities by the United States in Vietnam.” Such provocative language makes us think more carefully about the nature of the game, and how it should be played. To deal with the impunity of the powerful in their abuse of the weak, the supposed uncertainty of outcome in a governmental trial (where some version of the myth of ‘innocent until proven guilty beyond a reasonable doubt’ is in force) is not present in this kind of setting. The very premise of the Russell Tribunal, and the many subsequent reenactments, is that it is the presence of such certainty that generates a sufficiency of moral outrage and political incentive to give rise to the inquiry. Frank Barat, the main organizer of RToP put the issue slightly differently, by observing “[o]ur intention has never been to find out if Israel were guilty or not, nor to start a debate about it. This work has already been done by UN bodies, human rights organizations, aid organizations and countless violated UN Security Council resolutions.” And further, “[i]t is our duty to stand with the oppressed in its quest for justice.”
In this respect those civil society tribunals that try to imitate to enhance their credibility by mimicking a judicial model of inquiry and decision risk generating confusion. They make it more reasonable for critics to point out that if the tribunal purports to be trying to ascertain guilt rather than denounce it on the basis of a preexisting legal consensus, then a pretense of ‘judicial process’ does make itself subject to criticism as a hypocritical fraud. To some extent the recently concluded Kuala Lumpur War Crimes Tribunal, while impressive in many respects, fell into this trap by emphasizing the legal credentials of its ‘judges’ who were almost all exclusively jurists who were only locally known and by putting forward a token defense on behalf of Bush and Blair who were being primarily charged with crimes against the peace in connection with initiating a war of aggression against Iraq in 2003. The Russell Vietnam Tribunal, in contrast, had clearly signaled its rejection of this vocational model of law (that is, law as the exclusive province of those trained and credentialed in law) by using the word ‘atrocities’ in naming itself, by not seeking to appoint individuals with a law background to serve on its panel of judges, and by not mounting any defense on behalf of those accused (although a ritualized invitation was issued to the then American president, Lyndon B Johnson, to do so).
Obviously this issue raises a question for the future of such civil society efforts to document international criminality. Is it better to mimic the state-centric model of judicial process in a criminal case to the degree possible or is it preferable to produce a morality pageant in which a true story is told with as much passion, reasoning, and proof as available? Of course, international law can be invoked in the pageant model as explained by Barat when he writes that the RToP “by using international law as its basis, proposes a no-nonsense way forward. The law is on the side of the Palestinians, so let’s make good use of it. The Tribunal intends to assist the people working on a just peace for all with the legal means they have crucially been lacking for too long.” [Frank Barat, “What is the point of the Russell Tribunal on Palestine?” http://www.newint.org/blog/2011/12/01/russell-tribunal-on-palestine/] The pro-Palestinian claim as to international law here seems to correspond with a fair reading of relevant international law on all crucial dividing issues: settlements, Jerusalem, refugees, occupation, land, water, and the utmost issue, self-determination. So stacked it reinforces the moral condemnation. Incidentally, Israel seems to share this assessment as it has used all of its ingenuity and political skill to ensure that peace negotiations are carried on in a perverse atmosphere that excludes the relevance of claims of right with respect to international law. It is such an exclusion in these phony negotiations that allows Israel to rely on ‘facts on the ground’ to overcome
the usual view that unlawful acts cannot generate legal rights. It is true that a genuine ‘peace process’ that considered rights rather than hard power as the basis of compromise and reconciliation would suddenly swing the balance ofequities sharply in favor of Palestinian claims.
Realizing that the objective is to overcome ‘silence,’ the RToP was greatly helped by the publication of a slanderous attack on the prospective undertaking in the pages of the New York Times by the notable South African public figure Richard Goldstone. [Goldstone, “Israel and the Apartheid Slander,” NY Times, 31 Oct 2011] Never before in the more than four decades of such proceedings had an influential media venue in the West stooped to take notice of such happenings prior to their occurrence. Not only did Goldstone call global attention to RToP but he created a platform in the most august media outlet in the West for response that was used to advantage by John Dugard, another South African jurist of global stature with special expert credentials as to conditions in Palestine as well as to the experience of apartheid in South Africa. The Goldstone attack suggests that it sometimes better to have enemies than friends!
In the article almost ludicrously Goldstone declared “In Israel, there is no apartheid. Nothing there comes close to the definition of apartheid under the 1998 Rome Statute. ‘Inhumane acts..committed in the context of an institutionalized regigme of systematic oppression and discrimination..’” Really! The list of discriminatory laws, the dual administration of settlements and Palestinians, the checkpoint treatment of Palestinians, the settler only roads, the non-protection of Palestinians living under occupation, the midnight abusive arrests of children certainly suggests a pattern of inhuman acts even to uninformed minds!
Without naming the panel of assessors, among whom were a death camp survivor and French diplomat, Stephane Hessel, a former member of Mandela’s cabinet—Ronald Kasrils—a Nobel Peace Prize Laureate from Northern Ireland, Mairead Maguire, — a world renowned author, Alice Walker — a distinguished English barrister, Michael Mansfield, QC– and a former American congresswoman—Cynthia McKinney. Goldstone simply dismisses these distinguished personalities as ‘critics whose harsh views of Israel are well known.” The question, of course, is not whether these outstanding personalities have strong opinions on the matter at issue, but whether they deserve our trust based on their reputation for bearing witness truthfully and effectively. [For insightful interviews by Hanan Chehata with these leading RToP participants see the Middle East Monitor website <http://www.middleeastmonitor.org.uk/media-review/event-review/3053-the-russell-tribunal-on-palestine-cape-town>
RToP in South Africa: Why? Why not?
The RToP chose South Africa as the site for this session on apartheidquite obviously to claim continuity with the universally condemned racist regime that governed the country until 1994. This continuity with the past was strongly reinforced by having Archbishop Emeritus Desmond Tutu, renowned opponent of apartheid in South Africa and someone who early on had compared Israeli treatment of Palestinians with apartheid South Africa, deliver an opening address at the session in Cape Town. This lineage was further reinforced by the presence of the former South Aftican cabinet member Ronald Kastrils, a Jewish member of the RToP panel, as well as receiving testimony from John Dugard, the world respected South African expert familiar with the both realities who had been a prominent opponent of apartheid at home as well as UN HRC Special Rapporteur for Occupied Palestine in which role he pronounced upon the occupation as an instance of the international crime of apartheid.
But there was also some cost paid for emphasizing this link to South Africa, which was the only real basis for Goldstone’s rant directed at RToP. Goldstone called the comparison “an unfair and inaccurate slander against Israel, calculated to retard rather than advance peace negotiations.” In effect, it allows the misleading argument to be made that since there are significant dissimilarities between Israeli treatment of the Palestinians and the South African racist regime the allegation against Israel would seem to rest on the credibility of the comparison. As should be understood by people of good will by now, the apartheid experience in South Africa gave rise to the formulation of an international crime of apartheid as specified in the 1973 International Convention and included in the 2002 Rome Treaty establishing the International Criminal Court, but it does not delimit future occurrences of the crime of apartheid. In this latter legal instrument, apartheid is set forth as one of eleven types of ‘crimes against humanity’ in Article 7(1)(j) of the treaty without any reference to the South African antecedent set of conditions.
The Crime of Apartheid
The most controversial, and at the same time far reaching feature, of the RToP finding was to conclude that Israeli responsibility for establishing an apartheid regime applied not only to Palestinians living under occupation, but also to the Palestinians minority living with discriminatory regulations in Israel and to the Palestinian diaspora consisting of 4-5 million refugees and exiles. Seen in isolation it seems like an unconvincing extension of the meaning of apartheid, even if separated from its South African connection, to consider Palestinian citizens of Israel, even if victims of severe and humbling discrimination, as living under an apartheid regime or even more so to view diaspora Palestinians in this manner. But there is moral and psychopolitical weight to the unanimous view of the RToP jurors that the core right of self-determination applies to the Palestinian people as a whole, including those not living under direct Israeli military control. It challenges various Israeli efforts to split the Palestinian people, once a unity prior to the establishment of Israel, into a series of fragmentary realities, pitting against one another.The radical fragmentation of the West Bank, with its hundreds of checkpoints and restrictions on mobility and access, is a metaphor for this wider Israelipolicy of undermining Palestinian identity as a sequel to Palestinian dispossession associated with the nakba, conceived of as an ongoing process rather than an event frozen in time.
The RToP divides its rationale for finding guilty of committing the crime of apartheid into three main parts: (1) race as defining identity in Israel/Palestine relations (tribunal agrees that race in the international definition of the crime should be interpreted broadly to include ethnic and national character); (2) inhuman acts (specified in relation to Israeli treatment of Palestinians, as integral to the crime, particularly “colonization and appropriation of Palestinian land” and coercive fragmentation of the Palestinian community in “different physical spaces;” (3) a systematic and institutionalized regime as pervading the subjugation of the Palestinian people (preferential treatment of Jews, dual legal arrangements, restrictions on residence and mobility, deportations and house demolitions are elements
in what the tribunal calls “Israel’s institutionalized regime of domination.”
[See Victor Kattan’s excellent detailed analysis of the RToP finding of apartheid in his “The Russell Tribunal on Palestine and the Question of Palestine,” al-shabaka brief, 23 Nov 2011, http://al-shabaka.org/policy-brief/russell-tribunal-palestine-and-question-apartheid]
The importance of the RToP session is to strengthen the civil society case against the Israeli treatment of the Palestinian people. As such, it adds a certain quality of gravitas to such international initiatives as the Freedom Flotilla and the BDS (boycott, divestment, and sanctions) campaign. Thanks to Goldstone, and to the organizational skills of the tribunal, there has also been a certain media visibility for RToP that has been absent in most comparable undertakings including the Kuala Lumpur proceedings against George W. Bush and Tony Blair discussed earlier. In this sense, the crime of silence that disturbed Bertrand Russell during the Vietnam War is still being committed, but it has been to a degree mitigated by the legacy he continues to inspire.
Indirectly, also, the very existence of RToP should encourage states to be more active in exerting their own authority to implement individual accountability under international criminal law via reliance on universal jurisdiction. At present, the impulse to reassert such national agency to supplement weak international enforcement mechanisms has been weakened by a geopolitical backlash led by the United States in the aftermath of the Spanish indictment and British detention of Augusto Pinochet a little more than a decade ago. This struggle between the vitalization of international criminal law and geopolitical actors demanding impunity will help determine whether global governance is primarily a regime of power or becomes over time due to the struggles of the peoples of the world, a regime of just law.
Finally, we notice that the jurisprudence of conscience, that is, applications of law without punitive capacity in relation to alleged violators, is maturing in two parallel directions. The first illustrated by the Russell legacy, including at the RToP inquiry into Israeli apartheid, rests its methodology on law established by testimony of legal experts and findings of individuals whose credibility depends primarily on their moral authority and cultural stature, a jury of conscience that deserves out trust and respect. The second illustrated to a degree by the Kuala Lumpur proceedings, seeking to replicate the behavior of courts under the informal auspices of civil society, and seeks to base its credibility on a pervasive legal framework, including the makeup of the panel making findings and recommendations and extending to providing a defense on behalf of the government and individuals charged with criminal behavior. Hopefully, the fourth and final session of RToP, to be held in 2012 in the United States, will in addition to providing an overview of the allegations against Israel, also offer guidance to those who see a continuing need for a jurisprudence of conscience as a critical arena of struggle in the ongoing quest for humane global governance.