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Failing the people of Syria during Seven Years of Devastation and Dispossession

13 Nov

 

Failing the people of Syria during Seven Years of Devastation and Dispossession

 

[Prefatory Note: What follows is a wide-ranging interview in November 2017 that that concentrates on the failure of the UN and the world to rescue the people of Syria by a timely and effective humanitarian intervention. The interview was conducted by a Turkish journalist, Salva Amor, and is to be published in a magazine, Causcasus International. The text of the interview has been slightly modified.]

 

A missed chance 

 

  1. You previously referred to Syria as “an ideal case for humanitarian intervention” however, rather than becoming a prime example of positive humanitarian intervention it has turned into one of the greatest humanitarian crises with half of the country becoming refugees or internally displaced. 

 

What turned such an Ideal case for humanitarian intervention into one of the worst humanitarian responses we have seen in recent times?

 

Answer: I do not recall this reference to Syria as ‘an ideal case,’ but I must have meant it in a hypothetical sense, that is, as if ‘humanitarian intervention’ was ever called for, it was in Syria, especially at the early stages of the conflict. And yet I am inclined to think that regime-changing intervention was at all stages a mission impossible. We should keep in mind that the record of actual successful instances of what is labeled as ‘humanitarian intervention’ has been dismal, and when successful the motivation was not predominantly humanitarian, but rather a confluence of strategic interests of one sort or another with a humanitarian challenge. In Syria the strategic interests were not sufficiently strong to justify the likely costs, especially in the wake of Iraq and Afghanistan.

 

Sometimes, the intervention is a cover for non-humanitarian goals, as in Afghanistan (2002), Iraq (2003), and Libya (2011) and may be effective in attaining its immediate goals of regime change but is extremely costly from the perspective of humanitarianism if assessed from the perspective of prolonged violence, societal chaos, and human suffering.

And only marginally successful strategically given the resilience of territorial resistance and the pressure for long-term occupation if the original gains of intervention are to be preserved.

 

At other times, the humanitarian rationale is present, as in Syria, but there is no strategic justification of sufficient weight, and what is done by external actors or the UN is insufficient to control the outcome, and often ends up intensifying the scale of suffering endured by the population. In effect, humanitarian intervention rarely achieves a net benefit from the perspective of the population that is being supposedly rescued. Perhaps, Kosovo (1999) is the best recent case where an alleged humanitarian intervention enjoyed enough strategic value to be effective, and yet seems to have left the Kosovar population better off afterwards, although even Kosovo is not a clear case.  

 

 

Failures & implications of inaction

 

  1. The humanitarian failures in Syria and for Syrian refugees in neighboring countries including Jordan, Turkey, Lebanon and Iraq have had far-reaching implications for the EU with millions of refugees choosing to risk their lives in order to enter Europe causing the largest exodus since WWII. 

 

Could the surge of refugees fleeing to Europe have been avoided had a more positive and organized humanitarian intervention taken place?

 

Answer: It is possible that had Syria possessed large oil reserves, the intervention against the Damascus regime would have been robust enough to topple the regime, and create stability before combat conditions prompted massive internal population displacements and gigantic refugee flows, including the European influx. In this sense, Libya with oil, did prompt such an intervention, although it was an easier undertaking, as the Qaddafi regime had much less popular support than did the Assad regime, and was less well equipped militarily and lacked regional allies. In Syria, because of regional and global geopolitical cleavages, the politics of intervention and counter-intervention was far more complicated, and inhibited potential anti-regime interveners from making large commitments. At the early stages of the conflict Turkey and the United States miscalculated the costs and scale of a successful intervention in Syria, supposing that an indirect and low level effort could be effective in achieving regime change, which misunderstood the conditions prevailing in Syria.  

 

 

The best response

 

  1. In your experience, what would have been the ideal humanitarian response to the war in Syria? And who would have been best to implement it? 

 

Answer: As my earlier responses hinted, there is no ideal response, and the current world order system is not reliably capable of handling humanitarian intervention in a situation such as existed in Syria. To have any chance of effectiveness would require entrusting the undertaking to one or more powerful states, but even then the situation that would follow, is highly uncertain. In a post-colonial setting, there is bound to be strong nationalist and territorial resistance to outside intervention and occupation, generally producing serious prolonged chaos. If the country is very small and can be overwhelmed (Granada, Panama) without counter-intervention the undertaking will sometimes work. Iraq serves as a clear example of an intervention that did rid the country of a brutal tyrant, but produced internal violence among competing regions, tribes, and generated extreme sectarian strife between Sunnis and Shiites, as well as a series of ethnic, tribal, and regional battles.

 

In a better governed world, which is far from existing, the UN would have acted robustly and with the support of the regional governments in the Middle East, the geopolitical actors (U.S. and Russia) would have not pursued their strategic agendas, and a politically neutral intervention would have created the conditions for a post-Assad democratic political transition, including imposing accountability for past crimes. Merely mentioning this desirable scenario is enough to reveal its utopian character. Especially in the Middle East, geopolitics of a regional and global scope badly distort all efforts to fashion a humanitarian response to repression and severe violations of human rights. In the background, but not far in the background, is the relevance of oil. The countries that have experienced massive interventions (Iraq, Libya) possessed abundant oil reserves, while those that have little or no oil have either been ignored or endured prolonged bloody conflict, of which Syria is the worst case, having become the scene of competing and offsetting interventions motivated by political and strategic ambitions with only a thin propaganda rationale associated with alleviating a humanitarian crisis, which at best, was a much subordinated goal of the interveners on both sides.

 

 

Lessons for Future

 

4a. How can the world learn from the humanitarian failures and inaction that occurred in Syria for the past 7 years? What opportunities to protect, defend or support the Syrian people have we missed?

 

Answer: In my view, it is a mistake to speak of ‘inaction’ in the Syrian context. There have been massive interventions of all sorts on both sides of the conflict by a variety of actors, but none decisive enough to end the conflict, and none primarily motivated by humanitarian concerns. Of course, here and there, lives could have been saved, especially if the balance of forces within Syria had been better understood at an early stage of the conflict in the West. What intervention achieved in Syria was largely a matter of magnifying the conflict, and attendant suffering. The conflict itself was surrounded by contradictory propaganda claims making the reality difficult to perceive by the public, and therefore there was political resistance to more explicit and possibly more effective regime changing intervention. 

 

Indifference:

 

4b. Is there any correlation between the rise of Islamophobia and the world’s inaction towards Syrian people’s suffering? Has the ongoing drumming of hatred towards the Islamic religion created a generation of indifference towards those of them who are suffering? Or is such wide indifference a natural response to such overwhelming humanitarian crisis?

 

Answer: The indifference in relation to Syria is mainly a matter of public confusion and distrust. Confusion about the nature of the conflict and distrust as to the motives of political actors that have intervened on either side. The spike in Islamophobia is attributable to the interplay of the European refugee crisis and the occurrence of terrorist incidents that are perpetrated by ISIS and its supporters. Of course, the massive refugee flow was prompted by the violence in the Syrian combat zones, which has made Europe most interested in resolving the conflict even if meant allowing a criminal regime to remain in power.

 

I suppose that the indifference noted in your question is more evident in relation to the plight of the Rohingya people in Myanmar that in response to Syria where, as I have been suggesting, the political context dominates the human suffering, and the Islamic identity of the victimized people is secondary. Also, it is worth recalling the global indifference to genocide in Rwanda (1994) that could have prevented,

or at least minimized, by a timely, and relatively small scale intervention. And on occasion, if the strategic context is supportive, the West will intervene on the Islamic side as in Bosnia and Kosovo in the 1990s, and there in opposition to the Christian side.  

 

 

  1. The UN has handed over a large portion of the $4bn of its aid effort in Syria to the Syrian regime or partners who have been approved by Bashar Al Assad. How does the UN justify providing tens of millions of dollars in humanitarian aid to one of the worst governments, that has besieged, starved, bombed and killed hundreds of thousands of its own people? 

 

Answer: I suppose the basic justification for this behavior is that from the viewpoint of the UN the Damascus regime remains the legitimate government of Syria representing the country at the UN. This is of course a legalistic justification, and evades the real humanitarian crisis as well as the crimes of Assad’s regime. So far, because there is a geopolitical standoff, regionally (Iran v. Saudi Arabia) and globally (Russia v. the U.S. and Turkey), the UN has tried to remain aloof from the ambit of political controversy to the extent possible while doing what it can to alleviate human suffering. I am not knowledgeable about whether the UN aid is reaching the civilian population as claimed. The language of your question suggests that there should be some mechanism for disqualifying a government that commits repeated crimes against its own people from being treated by the UN as a normal member state, but this is not likely to happen anytime soon, and it is tricky as the UN System is built around state-centric ideas of world order.

 

 

The right to torture

 

  1. The world was shocked in 2015 when the Caesar files were releasedrevealing human stories behind 28,000 deaths in Syrian prisons, most, if not all were tortured prior to their death.Two years later no action has been taken in regards to detainees and torture in prisons. There has been no action or desire to send observers to Syrian Prisons nor to investigate those who were named in the Caesar files for war crimes.What must a dictator have to do for the international community to respond to his crimes? Comparing Libyan intervention with Syria

 

Answer: I took part recently in a ceremony in Nuremberg Germany that awarded a human rights prize to the photographer, whose identity is kept secret for his safety, responsible for the Caesar Report containing photographic images of Syrian prison torture of some 11,000 prisoners, most of whom are reportedly now dead. There is no question that these images are horrifying, but serious issues have been raised as to the authenticity of this photographic archive. It has been authenticated as genuine by Human Rights Watch, but has also been used by persons closely connected with the U.S. Government to build a case for war crimes prosecutions, particularly against Bashar al Assad. I am not in a position to assess the controversy, yet do not doubt that the Damascus regime has committed many atrocities and are responsible for the great majority of civilian deaths over the course of the last six years in Syria. At the same time the anti-regime forces, which are fragmented, have also committed many war crimes.

 

These issues of criminal accountability cannot be reliably answered from a distance, or merely on the basis of media reports. What is required is a credible international fact finding commission of inquiry with adequate access to whatever evidence and witnesses remain available.

 

 

 

  1. Human rights groups have estimated that no less than half a million people have died in the last 7 years in Syria. Although there are many violent factions in Syria, more than 94% of all deaths have been caused by Syrian Government or Russian strikes. In comparison Libya’s Muammer Gaddafi had killed an 257 people including combatants and injured 949 with less than 3% being women and children when UN security council intervened. On March 17, 2011, the United Nations Security Council adopted Resolution 1973 (2011) authorizing “regional organizations or arrangements…to take all necessary measures…to protect civilians and civilian populated areas under threat of attack” in Libya. The resolution was adopted with ten votes for, none against, and five abstentions. In hindsight, many have now questioned whether that intervention was purely to “protect civilians”. Is the UN Security Council still a reliable body that can be relied upon to protect the civilian? The UN’s Responsibility Not – To Protect the Civilian Population

 

Answer: The Responsibility to Protect (R2P) UN norm is interpreted and practice is governed by the UN Security Council, and hence is completely subordinated to the manipulations of geopolitics. In this regard, the lesser humanitarian hazard in Libya led to a UN regime-changing mission because the Permanent Members opposed to intervention (China, Russia) were persuaded not to cast their veto for what was being proposed, which was a limited humanitarian mission to protect the then entrapped civilian population of Benghazi. In fact, the NATO undertaking expanded the mission far beyond the Security Council mandate from its inception, angering Russia and China that had abstained out of deference to pleas relating to the humanitarian claims put forward by the NATO members of the Security Council. They later justified their opposition to a more pro-active UN role in Syria by reference to this failure of trust, the unwillingness of the intervening states to respect the limits of the mandate.

 

What is important to appreciate is that R2P and other UN undertakings must adhere to the constraints of geopolitics. As disturbing as inaction with respect to Syria, is the UN silence with regard to the abuse of the civilian populations of Gaza and Rakhine (Myanmar). It is only when a geopolitical consensus exists, which is quite rare (e.g. failure with respect to Yemen) that it is possible for the UN to play an important humanitarian role in shaping behavior and protecting civilians.

 

 

  1. Why was The UN’s responsibility to protect (R2P ) invisible in the last 7 years in Syria? What must be done now, in order to implement an R2P operation in Syria to avoid further suffering? In past years vetoes have blocked humanitarian intervention.

 

Answer: Part of my response here has already been given in relation to the prior question. I would only add here that the abolition of the veto would be a crucial step, or even an agreement among permanent members of the Security Council to refrain from casting a veto in humanitarian contexts such as Syria. The problem is that the veto powers are extremely unlikely to give up their right of veto, partly because such states do not voluntarily give up power and partly because humanitarian issues are almost always inseparable from diverse and often antagonist geopolitical interests, and therefore the claims are not perceived as humanitarian. This is certainly the case with regard to Syria. The take away conclusion is that the international system as it now functions is rarely motivated by humanitarian considerations when they come into conflict with the strong political preferences and strategic priorities of principal states, and this is true even when the humanitarian crisis is as severe and prolonged as in Syria.

 The most constructive response, in view of these realities, is to advocate global reform, but this will not happen without a major mobilization of people throughout the world or as a frantic response to some earth-shaking catastrophe.

 

 

  1. I understand that there was a veto by Russia and thus a solution was not passed, however, in such cases, when one of the countries that is involved in the atrocities is allowed to veto, does it not raise the alarm?Surely, this situation in Syria and the human cost provides enough of a precedent for (if not the UN, those who care about preventing further atrocities) a new chapter to be drafted and implemented into the UN. –Do you believe that it is time for the UN to adopt a new chapter into itsCharter that would prevent dictators or countries with vested interest in a war from overpowering UN Security Council votes? Normalizing atrocities at the global level.

 

Answer: Yes, there was much criticism of Russia for blocking action on Syria, but Russia was acting in accord with the constitutional structure of the UN. The U.S. uses its veto in a comparable way to protect Israel and other allies, and equally irresponsibly, from a moral or humanitarian point of view. It should be remembered that the League of Nations fell apart because major states would not participate, including the United States. The idea of the veto was designed to persuade all major states to participate, with the goal of universality of membership, but at the cost of engendering paralysis and irresponsible obstructions to action whenever veto powers disagree sharply. Your questions raise the crucial issue if this was too high a price to pay for the sake of maintaining universality of participation. One consequence of this tradeoff between geopolitics and effectiveness is to weaken public respect for the UN as an agency for the promotion of justice and decency in global affairs.

 

As specified in Article 108 of the UN Charter requires the approval of 2/3rds of the entire membership of the UN as well as all five Permanent Members of the Security Council, which means that it will not happen in the foreseeable future in relation to any politically sensitive issue. When World War II ended there was the hope and illusion that countries that cooperated against fascism would continue to cooperate to maintain the peace. As should have been anticipated, it was a forlorn hope.

 

 

  1. The White House accepts Assad’s continued rule in Syria as a “political reality” while European leaders have also taken a soft approach with French president declaring he no longer saw the removal of Assad as necessary. In your view, how do such civilized countries justify good relations with Assad? ISIS the monster that invites intervention: ISIS Affects the West, Assad does not.

 

Answer: Your comment on ISIS is a way of expressing my view that these issues are dominated by geopolitical calculations. ISIS as horrible as it is has not been nearly as responsible for the quality and quantity of suffering inflicted upon the Syrian people by the Damascus regime.

 

At this point, and given the unavailability of humanitarian intervention, the best Plan B for Syria is to seek a sustainable ceasefire, and this would undoubtedly require making some unpalatable compromises, including the possible retention of Assad as head of state. After all, there are many heads of state with much blood on their hands, and yet their legitimacy as rulers is essentially unchallenged. The way the world is organized makes it unable to impose criminal responsibility on the leaders of sovereign states except in special circumstances of total victory as in World War II, or more recently, in relation to the criminal prosecutions of Saddam Hussein and Milosevic, particular enemies of the West.

 

 

  1. Many Syrian groups have released statements to express their dismay at the international community for only intervening to strike ISIS. The Global Coalition’s planes hover over Deir Al Zour and Raqa to target ISIS (often causing civilian casualties) while in the same sky Assad Planes carrying deadly Barrel Bombs hover over nearby towns unperturbed. A) Is there balance in the international community’s actions in Syria? While Assad only kills or affects the lives of Syrians in Syria, ISIS became a threat to western countries. Terrorist attacks in the west killed and injured civilians in the west.
  2. B) Is there an underlying message that the West will “Fight against ISIS in Syria, because it affects people in our countries, but leave Assad because he has no impact on their own people?”

 

Answer: Yes, this is certainly a perceptive observation. When the issue is fairly large scale and internal, and where Muslims are the victims, any effort to intervene is bound to be feeble, at best, which it was in the early stages of 2011-2013 when Turkey and the U.S. cooperated in supporting Friends of Syria, which was mistakenly thought capable of shifting the balance sufficiently in Syria to produce the collapse of the Damascus regime. When that failed, it became obvious that the costs of an effective intervention were viewed in the West as too high and dangerous. Considering the Iranian and Russian alignments with the Syrian government doomed an anti-Damascus intervention.

 

And as you suggest, the West views ISIS as dangerous enemy, and is prepared to take bigger risks and bear higher costs because Western homeland security is at stake. ISIS is a proclaimed enemy of the West that is perceived as responsible for violent acts, Syria is not, being regarded, at most, as an unattractive regime, partly because in the past, hostile toward Israel. Taking account of these circumstances, the political realist seeks a ceasefire in Syria while going all out to achieve the destruction of ISIS.

 

 

  1. Please kindly note any comments, suggestions, opinions, thoughts you have on the Syrian conflict and in particular on the west’s reaction to it and the UN’s role. Also, on what you feel can and should be done from now on. Thanks so much.

 

Answer: From my earlier responses I am skeptical about what can be done beyond the obvious: give up any hope of securing support for an R2P mandate to protect the Syrian people, and pursue a ceasefire so as to end the suffering. This is not justice, but it may at least spare the Syrian people further trauma and bloodshed.

 

What the Syrian tragedy and ordeal reveals vividly is the inability of the international community, as now organized, to deal with a humanitarian crisis unless a geopolitical consensus is present in a relatively strong form, regionally and globally. Such a consensus is not even enough if the difficulties of intervention are seen as producing heavy casualties for the intervening side and would impose burdens of a prolonged occupation to achieve post-intervention political order and security.

 

Europe would benefit at this time from a Syrian ceasefire and the restoration of political normalcy. It would undoubtedly reduce the pressure on European countries created by the Syrian refugee flow, which has given right wing political parties their greatest strength and largest level of popular support since the end of World War II.

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The One and Only Path to Palestine/Israel Sustainable Peace

12 Oct

[Prefatory Note: This post is a slightly modified version of my presentation to the Human Rights Commission of the Italian Parliament on October 11, 2017. The Commission is composed of members of Parliament, and chaired by Hon. Pia Elda Locatelli, representing the city of Bergamo. The presentation was followed by a discussion, and a generally favorable response on the central issue of switching from an emphasis on ‘occupation’ to ‘apartheid.’ To access the Report use this link<https://www.scribd.com/document/342202460/Israeli-Practices-Toward-the-Palestinian-People-and-the-Question-of-Apartheid/>%5D

 

 An Overview of Present Realities

 

We meet at a difficult time from the perspective of the Palestinian people: several developments nationally, regionally, and internationally now deprive Palestinians of that glimmer of hope that comes from seeing light at the end of the tunnel; more fully appraised, the situation is not as bleak for Palestinians as the picture of their struggle being painted from a realistic perspective. A series of factors pointing in both directions can be identified, first to highlight the negative developments from a Palestinian perspective, and then to set forth several developments that are positive with regard to the Palestinian national movement aiming for decades to achieve a just and sustainable peace.

(1) the foreign policy priorities of regional and international political actors have increasingly shifted attention away from the Palestinian ordeal; developments internal to Israel have deliberately accentuated this inattention to Palestinian goals and rights; of special relevance in these regards are the ongoing wars and turmoil in Syria, Yemen, Libya, and Iraq, as well as deteriorating relations and rising tensions of the Iran/US relationship; the moves toward normalization of relations with Israel by the Gulf countries, especially Saudi Arabia; and the unsteady diplomatic approach of the Trump presidency that seems accurately interpreted as supportive of whatever the Israeli government chooses to do, including even accelerated settlement expansion and a rejection of the Palestinian right of self-determination;

(2) Israel and Zionist support groups have launched a variety of initiatives designed to convince the Palestinians that they have been defeated, that their struggle is essentially futile at this stage, and they should move on for their own sake, overtly renouncing their struggle and posture of resistance; the pro-Zionist Middle East Forum, founded by Daniel Pipes has even sponsored a so-called ‘victory caucus’ that basically proclaims an Israeli victory as a way of demoralizing Palestinian activism and global solidarity efforts by treating Palestinian goals as a lost cause;

(3) accelerated Israeli settlement expansion without any adverse pushback from Europe or North America, a development that can be regarded as hammering the final nails into the coffin of ‘the two state solution;’

(4) the widespread recognition that more than 20 years of diplomatic effort within the Oslo framework failed miserably, with the Palestinians paying a heavy price in territory and credibility for engaging so avidly in a diplomatic process so heavily weighted against them; Oslo’s failure permitted Israel to encroach on Occupied Palestinian Territory in a variety of unlawful ways including especially extending the settlement archipelago, illegally building the separation wall on Palestinian occupied territory, and manipulating the ethnic balance in Jerusalem to make the city as a whole more Jewish;

(5) confronting a crisis of viability in Gaza, of both a material and psychopolitical character; not only continuing a decade long blockade that itself amounts to a crime against humanity, but stifling the dreams of young talented Gazans who against all odds have earned foreign fellowships and then are either denied exit permits or entry visas to carry on their studies abroad; this kind of acute frustration, long experienced by Gazans in many forms, is contributing to a new turn among Palestinian youth, who increasingly want to leave Gaza and pursue a more normal life for themselves and their families rather than remain under conditions of virtual captivity to resist and carry on the struggle for empowerment and liberation.

 

Despite all these considerations, there are aspects of the situation, often overlooked in mainstream media, which seem favorable to the Palestinian struggle:

(1) the morale boost that resulted from prevailing in the recent Al Aqsa confrontation concerning control of security arrangements at this site sacred for all Muslims, not just for Palestinians who are Muslim;

(2) a more serious renewal of efforts to bring unity to the relationship between Palestinian political tendencies, especially Fatah and Hamas;

(3) the growing global support for the BDS Campaign, achieving some high visibility successes prompting corporate disengagements from commercial projects related to unlawful Israeli settlements—G4S, Viola; and persuading some high visibility cultural figures not to perform in Israel—Pink Floyd

(4) Palestine is definitely winning the Legitimacy War waged to build stronger and more activist support from international public opinion; such support has been understood as far back as Gandhi as capable of neutralizing the superior military capabilities of a foreign political actor; throughout the decolonization era, the political outcome of struggles for control of state power were eventually won by the party on the right side of history, not as in the 19th Century by the party enjoying military superiority, which in the second half of the 20th century continued to make colonized people suffer greatly, but no longer able to impose their political will; Zionist/Israeli reaction to this set of developments relating to legitimacy has been to shift the conversation about Israel/Palestine relations from the defense of Israeli practices and policies and away from the substance of Palestinian grievances and rights to mount an attack on the motives of those criticizing Israel’s policies and practices, alleging that Israel’s critics are motivated by anti-Semitism, a smear tactic that also is encroaching on academic freedom, but exposing the weakness of Israel’s position on the merits. Internally, the Israeli public discourse is much more focused on the opportunity of fulfilling the maximalist Zionist goal of incorporating the whole of ‘the promised land’ of biblical Israel into the modern state of Israel;

(5) It is my judgment that the biggest development favorable to the Palestinians has been a shift in the public discourse and the articulation of Palestinian demands of peace and solidarity activists from the slogan ‘End the Occupation’ to a clarion call to ‘End Apartheid.’ This shift has been recently legally validated by a UN-sponsored academic study of whether the claim that Israel is an apartheid state stands up to scholarly scrutiny.

 

 

 

The ESCWA Report

 

The UN Report of the Economic and Social Commission for West Asia (ESCWA) entitled “Israeli Practices and the Question of Apartheid” issued a few months ago, and co-authored by myself and Virginia Tilley, a renowned world expert on apartheid and a political scientist on the faculty of the University of Southern Illinois. ESCWA is a regional commission of the UN composed of 18 Arab states, with headquarters in Beirut. The Report was requested by the member states, and we were invited to prepare the report in accordance with academic standards by the Secretariat of ESCWA. The Report was never intended to become an official UN document, but rather the presentation of the views of two scholars with a background presumed relevant for the preparation of such a study:

–the issuance of the report had two immediate effects: first, it immediately became the most widely read and requested report in the history of ESCWA, and secondly, it produced a firestorm at the UN due to harsh criticisms by the U.S. and Israeli representatives who demanded that the Report be formally repudiated, attacking its authors, and insisting that the UN take prompt action or face the defunding consequences;

–the new UN Secretary General, Antonio Gutterez, dutifully responded by instructing ESCWA to remove the Report from its website; the director of ESCWA, Rima Khalaf, refused to follow such an order, believing in the contents and propriety of the Report; in the end she chose to resign rather than submit to UN censorship, explaining her position in an Open Letter to the SG;

–at this point it is not clear what the status of the Report is within the UN System; it has not been officially repudiated, and in fact the 18 foreign ministers representing the members of ESCWA endorsed the conclusions and recommendations of the Report, and urged their acceptance within the UN; I have no idea as to whether such a response will have any impact;

–as indicated the Report was an academic study, although of an admittedly controversial character; prior to its release, the Report was anonymously vetted by three world class scholars each of whom strongly recommended publication; as well, the report contained a disclaimer that stated that the recommendations and conclusions of the Report were those of the authors alone and did not represent the opinions of the UN or ESCWA; and in fact, the Report has to date received no substantive criticism from those who mounted the UN attack or otherwise; it was a pure show of geopolitical leverage that exposed the weakness of international law and the fragility of open discussion of sensitive issues at the UN;

–it is my judgment that the Report is significant for three distinct reasons:

         <(1) The Report considers whether the allegation of Israeli apartheid is backed by sufficient evidence and persuasive legal reasoning in relation not just to the West Bank, as has been frequently alleged in the past, but in relation to the Palestinian people as a whole; such an inquiry means that if apartheid is declared to exist it applies to Palestinians living in Jerusalem, as a minority in Israel, and in refugee camps in neighboring countries as well as to Palestinians living in occupied Palestine or as involuntary exiles throughout the world; the central legal finding is that Israel has established an integrated matrix of control over the Palestinian people as a people so as to maintain the Israeli state as ‘a Jewish state’ in the face of continuous Palestinian resistance for the entire period of Israel’s existence;

         <(2) The Report reaches its conclusions by relying on scholarly methods of analysis, and by examining and interpreting the evidence of Israeli policies and practices in relation to the relevant norms of international law as contained in the 1973 International Apartheid Convention. The essential finding we reached was that Israel intentionally and continuously was responsible for ‘inhuman acts’ as the means by which to subjugate the Palestinian people as a subordinated ‘race.’ This enabled Israel to govern in a discriminatory fashion as ‘a Jewish state;’ in our judgment the Palestinian people were deliberately fragmented so as to facilitate the maintenance of control over a resisting, initially majority non-Jewish population; this ambition to control Palestine was complicated by the additional Zionist objective of seeking to be and be seen as ‘a democratic state;’ such an objective, given the demographic imbalance, virtually necessitated at the inception of Israel as a state, the expulsion of several hundred thousand Palestinians and the destruction of hundreds of Palestinian villages to discourage any prospect of Palestinians returning after the war to reclaim their places of residence and way of life; such exclusion was seen as vital if Israel was to achieve and maintain a Jewish majority population within its borders; the Zionist puzzle, tragic for both peoples, was that only apartheid structures could provide a solution to this three-sided challenge—that is, establishing Israel as simultaneously Jewish, democratic, and hegemonic;

         <(3) this Report has been widely used since its publication, and especially to provide political support and intellectual guidance mandating a civil society shift in tactics and commentary from a focus on ‘ending occupation’ to ‘ending apartheid;’ in my view, this is a crucial and timely shift as international law and the UN had been long ignored by Israel, diplomacy and armed struggle had been tried futile and utterly failed, and Palestinian leadership, such as it is, has faced both a series of stone walls and the humiliation of the notorious separation wall declared contrary to international law by 14 of 15 judges of the International Court of Justice. In effect, there is no serious alternative for Palestinians (and even Israelis) committed to a peaceful future than to rid the Israeli/Palestinian relationship of its present apartheid character.

 

 

Clearing the One and Only Path to a Just and Sustainable Peace

–peace between these two peoples can only be achieved by a credible acknowledgement of their equality of rights with respect to national self-determination; the apartheid structures that currently subjugates Palestinians epitomizes a relationship of inequality; the core obstacle to peace is apartheid, and once this obstacle is removed a productive diplomacy will become possible so long as it proceeds at all stages on the basis equality, keeping in mind that Oslo diplomacy collapsed because it encoded inequality into every aspect of its framework (U.S. as intermediary, excluding international law) and by adopting a bargaining process that favored Israel due to disparities in power and influence;

<the overriding political challenge is how to clear this path to peace, given Israeli firm control and resistance to even the acknowledgement of apartheid as descriptive of the current relationship between the two peoples; Israeli apartheid cannot be ended without a reformulation of Zionist goals; Israel must be persuaded to become content with an existence within a secular state hosting a Jewish homeland; such an altered stance would require abandoning the insistence on being a Jewish state; such a downsizing of Zionist objectives would actually be consistent with the scope of the original British pledge as set forth in the ultra-colonialist Balfour Declaration (recent archival research evidently establishes that a Jewish homeland was actually the longer term intention of Lord Alfred Balfour, as if this matters a century later); Israeli apartheid will not be dismantled until there is significant further growth of the Palestinian global solidarity movement, including the backing of some governments, especially several key governments in the global South; there would need to be sufficient, sustained global pressure to induce Israeli leaders and citizens to recalculate their interests, leading enough to decide to base their future on cooperation and coexistence with the Palestinians rather than their domination and exploitation; at this point, such an outcome seems unlikely and even utopian, but history has a strange way of staging dramatic surprises, and in such cases where an abrupt reversal of policy takes places, it will be only be admitted as a possibility after it has already been decided upon;

<The South African ending of apartheid was precisely such a surprise; it was totally unexpected in the 1990s that the combination of African resistance and the global anti-apartheid campaign would produce a peaceful transition to a multi-racial constitutional democracy presided over by Nelson Mandela, who until his release was serving a long-term prison sentence as an alleged terrorist; what changed so abruptly in South Africa was not the moral stance of the white elite that had invented and cruelly imposed the apartheid structure as a supposedly permanent solution to race relations in the country, but rather a cold recalculation of interests, and especially a comparison of the balance of advantages and disadvantages of continuing to exist as a pariah state in the world and abandoning apartheid, thereby risking African governance and possible retaliation, yet by so risking, taking a course that would alone restore the international legitimacy of the South African state;

<Of course, there are many differences in the Israeli situation, including Israel’s disavowal of apartheid as relevant to its management of the relationship between the two peoples, as well as Israel’s considerable success in avoiding pariah status within the international community through the practice of sophisticated diplomacy and public relations, backed by an aggressive arms sales program, and above all, by being the beneficiary of the geopolitical muscle of the U.S., as well as enjoying the quieter support of Europe;

<By adopting the apartheid paradigm as descriptive of the Palestinian situation it becomes possible to align civil society activism with international law, and even more important, encouraging the Palestinian national movement to concentrate its efforts on the one and only path that could produce an acceptable peace agreement. Any other approach seems doomed to some kind of appalling continuation of the present oppressive daily circumstances that has been fate of the Palestinian people for far too long. We should all reflect on the excruciating reality that this is the 50th anniversary of the Occupation and the 70th year in which Palestinians and their descendants have lived as refugees. No people should be compelled to endure such a fate.

 

 

Conclusion

 

It requires no great wisdom to observe that the future is a black box. We know that achieving peace and justice for these two peoples will require a lengthy struggle that needs to place its trust in ‘a politics of impossibility,’ or as the poet W.H. Auden once put it: “We who are about to die demand a miracle.” And while awaiting such a political miracle, we should accept our human responsibility to aid and abet the Palestinian struggle for rights, self-determination, and a just peace. The attainment of such goals would also inevitably reshape the destiny of Israeli Jews toward a more humanistic and benevolent future.

Nobel Peace Prize 2017: International Campaign to Abolish Nuclear Weapons (ICAN)

8 Oct

 

Finally, the committee in Oslo that picks a winner of the Nobel Peace Prize each year selected in 2017 an awardee that is a true embodiment of the intended legacy of Alfred Nobel when he established the prize more than a century ago. It is also a long overdue acknowledgement of the extraordinary dedication of anti-nuclear activists around the planet who for decades have done all in their power to rid the world of this infernal weaponry before it inflicts catastrophe upon all living beings even more unspeakable that what befell the cities of Hiroshima and Nagasaki on two infamous days in August 1945. Such a prize result was actually anticipated days before the announcement by Fredrik Heffermehl, a crusading Norwegian critic of past departures from Nobel’s vision by the prize committee. In making the prediction that the 2017 prize would be given in recognition of anti-nuclear activism Heffermehl prophetically relied on the outlook of the current chair of the Nobel selection committee, a distinguished Norwegian lawyer, Berit Reiss-Andersen, who has publicly affirmed her belief in the correlation between adherence to international law and world peace.

 

 

The recipient of the prize is ICAN, International Campaign to Abolish Nuclear Weapons, a coalition of more than 450 civil society groups around the world that is justly credited with spreading an awareness of the dire humanitarian impacts of nuclear weapons and of making the heroic effort to generate grassroots pressure sufficient to allow for the adoption of the UN Treaty on the Prohibition of Nuclear Weapons by 122 UN members on 7 July 2017 (known as the ‘BAN Treaty’). The treaty was officially signed by 53 governments of UN member states this September, and will come into force when 50 instruments of ratifications have been deposited at UN Headquarters, which suggests its legal status will soon be realized as signature is almost always followed by ratification.

 

The core provision of the BAN Treaty sets forth an unconditional legal prohibition of the weaponry that is notable for its comprehensiveness—the prohibition extends to “the developing, testing, producing, manufacturing, possessing, stockpiling and deploying nuclear weapons, transferring or receiving them from others, using or threatening to use them, or allowing any stationing or deployment of nuclear weapons on national territories of signatories, and assisting, encouraging, or inducing any of these prohibited acts.” Each signatory state is obligated to develop “legal, administrative and other measures, including the imposition of penal sanctions, to prevent and suppress” activities prohibited by the treaty. It should be understood that the prohibition contributes to the further delegitimation of nuclear weapons, but it does nothing directly by way of disarmament.

The BAN Treaty no where claims to mandate disarmament except by an extension of the reasoning that if something is prohibited, then it should certainly not be possessed, and the conscientious move would be to seek a prudent way to get rid of the weaponry step by step. In this regard it is notable that none of the nuclear weapons states are expected to be parties to the BAN Treaty, and therefore are under no immediate legal obligation to respect the prohibition or implement its purpose by seeking a disarmament arrangement. A next step for the ICAN coalition might be to have the BAN prohibition declared by the UN General Assembly and other institutions around the world (from cities to the UN System) to be binding on all political actors (whether parties to the treaty or not), an expression of what international lawyers call ‘peremptory norms,’ those that are binding and authoritative without treaty membership and cannot be changed by the action of sovereign states.

 

Standing in opposition to the BAN Treaty are all of the present nuclear weapons states, led by the United States. Indeed, all five permanent members (P-5) of the UN Security Council and their allies refused to join in this legal prohibition of nuclear weapons, and to a disturbing degree, seem addicted sustainers of the war system in its most horrific dimensions. Their rationale for such a posture can be reduced to the proposition that deterrence is more congenial than disarmament. Yet the nuclearism is a deeply discrediting contention that the P-5 provide the foundations of responsible global leadership, and therefore have accorded favorable status.

 

What the BAN Treaty makes clear is the cleavage between those who want to get rid of the weaponry, and regard international law as a crucial step in this process, and those who prefer to take their chances by retaining and even further developing this omnicidal weaponry and then hoping for the best. Leaders like Donald Trump and Kim Jung-un make us aware of how irresponsible it is to hope to avoid the use of nuclear weapons over time when such unstable and impulsive individuals are only an arm’s reach away from decreeing a nuclear Armageddon. What the Cuban Missile Crisis of 1962 should have taught the world, but didn’t, is that even highly rational governments of the world’s most powerful states can come within a hair’s breath of launching a nuclear war merely to avoid an appearance of geopolitical weakness (the U.S. initial refusal to remove nuclear missiles deployed in Turkey even though they were already scheduled for removal because obsolete as it feared that such a step would be taken as a sign of weakness in its rivalry with the Soviet Union). Further, we know that it was only the unusual and unexpected willingness of an unheralded Soviet submarine officer to disobey a rogue order to fire off a nuclear missile that then saved the world from a terrifying chain of events.

 

The nuclear weapons states, governed by political realists, basically have no trust in law or morality when it comes to national security, but base their faith in the hyper-rationality of destructive military power, which in the nuclear age is expressed in the arcane idiom of deterrence, an idea more transparently known in the Cold War Era as Mutually Assured Destruction (or MAD!!). It is impossible to grasp the essential links between geopolitical ambition and security without understanding the complementary relationship of deterrence and the nonproliferation regime (its geopolitical implementation to avoid the disarmament obligation of Article VI).

 

In essence, the grandest Faustian Bargain of all times is contained within the confines of the Nonproliferation Regime, which is a geopolitical instrument of control by permanently dividing the world between those that have the bomb and decide who else should be allowed to develop the capability and those who are without the bomb but also without any way to secure a world in which no political actor possesses a nuclear weapons option. In a central respect, the issue between the militarized leadership of the nuclear weapons states and the peoples of the world is a question of trust—that is, a matter of geopolitics as practiced versus international law if reliably implemented.

 

Everything in the human domain is contingent, including even species survival. This makes it rational to be prudent, especially in relation to risks that have no upper limit, and could produce massive suffering and devastation far beyond tragedies of the past. Of course, there are also risks with a world legally committed to prohibit the possession, threat, and use of nuclear weapons, although if nuclear disarmament were to carry forward the overriding intent of the BAN Treaty, a disarming process would seek with the greatest possible diligence to minimize these risks. A world without nuclear weapons would almost certainly be a safer, saner, more humane world than the one we now inhabit.

 

Beyond that it would move national and international policy away from the gross immorality of a security system premised on mass destruction of civilian life along with assorted secondary effects of ‘nuclear famine’ caused by dense smoke blockage of the sun, potentially imperiling the wellbeing of all inhabitants of the planet. The dissemination of toxic radiation as far as winds will carry is an inevitable side effect with disastrous consequences even for future generations. Such an ecocidal gamble is not only a throw of the dice with respect to the human future but also in relation to the habitability of the planet by every living species. As such, it profiles an aggravated form of Crimes Against Nature, which while not codified, epitomize the peak of anthropogenic hubris.

 

It with these considerations in mind that one reads with consternation the cynical, flippant, and condescending response of The Economist: “This year’s Nobel peace prize rewards a nice but pointless idea.” Such a choice of words, ‘nice,’ ‘pointless’ tells it all. What is being expressed is the elite mainstream consensus that it is the height of futility to challenge conventional realist wisdom, that is, the Faustian Bargain mentioned earlier. The challenge is declared futile without even considering the dubious record of geopolitics over the centuries of war upon war, which in the process has deprived humanity of untold resources wasted on generations of deadly weaponry that have inflicted massive suffering and could have been put to many far better and necessary uses.

 

Of course, the BAN Treaty as an expression of faith in the path of international law and morality radically diverges conceptually and behaviorally from the political path of nuclearism, hard power, and political realism. It will require nothing less than a passionate and determined mobilization of peoples throughout the world to get rid of nuclear weapons, and its accompanying deep ideology of nuclearism. This is a far preferable alternative than passively waiting for the occurrence of a traumatizing sequence of events that so jolt political consciousness as to topple the power structures that now shape security policy throughout the world.

 

What the BAN Treaty achieves, and the Nobel Prize recognizes, is that the cleavage is now clear between international law and geopolitics with respect to nuclear weapons. The BAN Treaty provides likeminded governments and animated citizen pilgrim throughout the world with a roadmap for closing the gap from the side of law and morality. It will be an epic struggle, but now at least there are some reasons to be hopeful, which should itself strengthen the political will of the global community of anti-nuclear militants. It is helpful to appreciate that this BAN Treaty was achieved despite the strenuous opposition of the geopolitical forces that run the world order system. Just as Nehru read the outcome of the Russo-Japanese War of 1904-05 as a decisive sign that European colonialism was vulnerable to national resistance, despite military inferiority, so let us believe and act as if this occasion of the Nobel Peace Prize is another tipping point in the balance between morality/legality on one side and violent geopolitics on the other.

 

Apartheid and the Future of Israel/Palestine

20 Sep

 

[Prefatory Note: There has been lots of discussion prompted by the release of a report jointly authored with Prof. Virginia Tilley, a study commissioned by the UN Economic and Social Commission for West Asia (ESCWA), and given by us the title, “Israeli Practices towards the Palestinian People and the Question of Apartheid.” The interview, associated with my current visit to Belgium and France to speak on various aspects of the analysis and implications of the report, brings up to date the controversy generated at the UN by its release a few months ago, and by the willingness of the UN Secretary General to bow to U.S. pressure and order the removal of the report from ESCWA website. The interview questions were posed by veteran Middle East correspondent, Pierre Barbancey, and published in l’Humanité, Sept. 6, 2017.]

 

 

 

1 YOU HAVE PUBLISHED A REPORT: WHO ASKS FOR THAT AND WHY?

 

The Report was commissioned by the UN Economic and Social Commission for West Asia in 2016 at the request of its Council, which has a membership of 18 Arab states. Professor Virginia Tilley and I were offered a contract to prepare a report on the applicability of the crime of apartheid to the manner in which Israeli policies and practices affected the Palestinian people as a whole, and not as in previous discussions of the applicability of apartheid, only to those Palestinians living since 1967 under Israeli occupation. The originality of the Report is to extend the notion of apartheid beyond the Occupied Palestinian Territories, and investigate its applicability to Palestinians living in refugee camps in neighboring countries, to those Palestinians enduring involuntary exile abroad, and to those existing as a discriminated minority in Israel.

 

2) What are the conclusions of the ESCWA Report?

 

The most important conclusion of the Report was that by careful consideration of the relevant evidence, Israel is guilty of the crime of apartheid as defined in the 1976 International Convention on the Suppression and Punishment of the Crime of Apartheid with regard to the Palestinian PEOPLE AS A WHOLE, that is, Palestinians living under occupation as refugee and in involuntary exile, and as a minority in Israel are all victimized by the overriding crime. The Report also found that Jews and Palestinians both qualify as a ‘race’ as the term is used in the Convention, and that Israel to sustain a Jewish state established by ‘inhuman acts’ a structure of oppressive and discriminatory domination by which the Palestinians were victimized as a people.

 

A second conclusion of importance is that the Rome Statute governing the International Criminal Court considers apartheid to be one type of ‘crime against humanity,’ which does not necessarily exhibit the same features as pertained to the apartheid regime in South Africa, the origin of the concept and crime, but not a template for its subsequent commission.

 

A third conclusion is that given the existence of apartheid, sustained to maintain a Jewish state in Palestine, all sovereign states, the UN, and civil society all have a legally grounded responsibility to take all reasonable steps of a nonviolent character to bring the commission of the crime to an end.

 

A fourth conclusion is that the Report is an academic study that draws conclusions and offers recommendation on the basis of a legal analysis, but it is not a duly constituted legal body empowered to make formal findings with respect to the allegations that Israel is guilty of apartheid.

 

 

 

3) WHAT WAS THE REACTIONS?

 

We experienced two contradictory sets of reactions.

 

From ESCWA the report was received with enthusiasm. We were told it was the most important report that ESCWA had ever published, with by far the largest number of requests for copies.

 

At the UN, the report and its authors were strongly attacked by the diplomatic representatives of the United States and Israel, with the demand the UN acted to repudiate the report. The Secretary General instructed the Director of ESCWA to remove the report from its website, and when she refusing, she tendered her principled resignation explained in an Open Letter to the Secretary General. It should be appreciated that this was an academic report of international law experts, and never claimed to be an official reflection of UN views. A disclaimer at the outset of the Report made this clear.

 

4) WHAT HAPPENED NOW WITH THE REPORT?

 

The status of the report within ESCWA is not clear. As far as I know the report itself has not been repudiated by ESCWA. In fact, it has been endorsed in a formal decision of the 18 foreign ministers of the ESCWA countries, including a recommendation to other organs of the UN System that the findings and recommendations of the Report be respected. Beyond this, the report has altered the discourse in civil society and to some extent, in diplomatic settings, making the terminology of ‘apartheid’ increasingly displace the emphasis on ‘occupation.’

 

 

5) ISRAEL SAYS THAT THE BDS MOVEMENT IS ANTI-SEMITIC. WHAT IS YOUR ANSWER?

 

This is an inappropriate and even absurd allegation. The BDS Campaign is directed against Israeli policies and practices that violate international law and cause great suffering to be inflicted on the Palestinian people. It has nothing whatsoever to do with hostility to Jews as persons or as a people. The allegation is clearly designed to discredit BDS and to discourage persons from lending it support or participating in its activities. It is an unfortunate and irresponsible use of the ‘anti-Semitic’ label designed to manipulate public opinion and government policy, and inhibit activism.

 

6) IN FRANCE YOU CAN BE PUT IN COURT IF YOU ACT FOR BDS, LIKE A CRIME. DO YOU HAVE ANY KNOWLEDGE OF SIMILAR SITUTIONS IN OTHER COUNTRIES?

 

I know there have been efforts in Europe and North America to criminalize support for BDS, but so far as I know, no formal laws have yet been brought into existence, and no indictments or prosecutions, outside of Israel and France, have taken place. I am not entire clear as to what has happened in Israel along these lines, although I know that Israel has been denying BDS supporters from abroad entry into the country.

 

7) WHAT IS YOUR EXPERIENCE AS SPECIAL REPORTEUR OF THE UNITED NATIONS IN THE PALESTINIAN TERRITORIES AND IN ISRAEL?

 

My experience as UN Special Rapporteur in Occupied Palestine on behalf of the Human Rights Council was both frustrating and fulfilling. It was frustrating because during my six years as SR the situation on the ground and diplomatically worsened for the Palestinian people despite the documented record of Israeli human rights abuses. It was fulfilling because it enabled a forthright presentation of Israeli violations of basic Palestinian rights, which had some influence on the discourse within the UN, building support for corporate responsibility in relation to commercial dealing with Israel’s unlawful settlements on the West Bank and East Jerusalem as well as shifted some of the discourse within the UN from ‘occupation’ to ‘settler colonialism’ and ‘apartheid.’

 

It was also something of a personal ordeal as I was constantly subject to defamatory attacks by UN Watch and other ultra Zionist NGOs and their supporters, also organizing efforts to have me dismissed from my UN position and barred from lecturing on university campuses around the world. Fortunately, these efforts failed by and large, but they did have the intended effect of shifting the conversation from substance to auspices, from the message to messenger.

7) 70 YEARS AFTER THE DIVISION OF PALESTINE BY THE UNITED NATIONS  HOW DO YOU SEE THAT DECISION?

 

The1947 partition resolution [GA Res. 181] was part of the exit strategy of the British colonial administration in the mandate period that controlled Palestine after the collapse of the Ottoman Empire at the conclusion of World War I. This approach was flawed in several basic respects: it neglected the will of the majority Arab and non-Jewish domestic population, and imposed a solution to the conflict without consulting the inhabitants; it also within its own terms failed to secure Palestinian rights or its sovereign political community, or even to uphold international humanitarian law. The UN never effectively implemented partition, and thus gave Israel the de facto discretion to impose its will on the entire territory of Palestine, including the expulsion of 750,000 Palestinians in the 1947 War, which overcame the demographic imbalance, and allowed itself to be branded to this day as ‘a democracy,’ even being hailed as ‘the only democracy in the Middle East.’ The US and Europe played a crucial geopolitical role in producing these developments, which rested on an Orientalist mentality lingering in the West.

8) IS THERE A SOLUTION FOR THE PALESTINIAN TO RECOVER THEIR RIGHTS AND TO LIVE IN THEIR OWN STATE?

 

It is difficult to envision the future at this stage, yet it is clear that the Palestinian national struggle is continuing both in the form of Palestinian resistance activities and by way of the international solidarity movement, of which the BDS Campaign is

by far the most important undertaking. In my judgment until there is exerted enough pressure on the Israeli government to change course drastically, signaled by a willingness to dismantle the laws and procedures associated with the current apartheid regime used to subjugate the Palestinian people, there is no genuine prospect for a political solution to the conflict. Such a change of course in South Africa occurred, against all expectations at home and abroad, and partly in response to pressures generated by this earlier version of an international BDS campaign. My hope is that as the Palestinian people continue to win the ongoing Legitimacy War, this pattern will eventually be repeated, leading after a prolonged struggle to a sustainable peace between these two peoples based on the cardinal principle of equality. This will not happen, tragically, until there is much suffering endured, especially by Palestinians living under occupation, in refugee camps and involuntary exile, and as a discriminated minority within Israel. This Palestinian ordeal has gone on far too long. Its origins can be traced back at least a century ago when in an undisguised colonial gesture of the British Foreign Office pledged its support for the establishment of a Jewish homeland in historic Palestine to the World Zionist Movement in the form of the Balfour Declaration (1917). The competing national narratives of what transpired over the subsequent century tell different stories, each with an authentic base of support in the relevant community, but only the Palestine narrative can gain present comfort from the guidelines of international law, above all, the inalienable right of self-determination

 

 

THE PALESTINIAN HUNGER STRIKE: “Our chains will be broken before we are..”

16 May

 

 

On April 17th at least 1500 Palestinian prisoners launched a hunger strike of indefinite duration, responding to a call from Israel’s most famous Palestinian prisoner, Marwan Barghouti. It also happens to be that Barghouti is the most popular political leader, far more liked, trusted, and admired that the President of the Palestinian Authority, Mahmoud Abbas. Barghouti is serving a series of lifetime terms for his alleged role in directing an operation during the Second Intifada in which five Israelis were killed.

 

Barghouti who has been in prison for fifteen years, gave his reasons for the strike as “torture, inhumane and degrading treatment, and medical negligence,” as well as a failure to abide by international legal standards pertaining to prison conditions during a military occupation. Even the normally timid International Committee of the Red Cross acknowledged prisoner demands by issuing a public statement asserting that the denial of family visits and moving Palestinian prisoners and detainees outside of the occupied territory to Israeli jails were violations of international treaty norms set forth in the Fourth Geneva Convention governing belligerent occupation.

 

Because Barghouti expressed his grievances in an article somewhat surprisingly published by the NY Times on April 16th. Surprising because the Times, an influential media outlet, has over the years been reliably deferential to the Israeli rationalizations for Israeli contested policies and behavior. It turns out that the newspaper was nervous about this departure from its normal operating mode. Barghouti’s piece only appeared in its international edition, and had a qualifying editorial note appended: “This article explained the writer’s prison sentence but neglected to provide sufficient context by stating the offenses of which he was convicted. They were five counts of murder and membership in a terrorist organization. Mr. Barghouti declined to offer a defense at his trial and refused to recognize the Israeli court’s jurisdiction and legitimacy.” [italics in the original]

 

In retaliation for daring to publish this opinion piece Barghouti was severely punished. He was immediately placed in solitary confinement, has not been allowed to change his clothes for the past month, and is inspected by prison guards four times a day.

 

The notorious Canadian ultra Zionist media watchdog, Honest Reporting, explains on its website that its goal is “defending Israel from media bias.” Honest Reporting expressed its outrage by condemning the NY Times for opening its pages to a convicted Palestinian ‘terrorist.’ It is Orwellinan to so describe Barghouti, a political leader courageously defending his people against an unlawful and oppressive occupation that is approaching its 50th anniversary, and is now best understood as a crime against humanity taking the form of apartheid victimizing the Palestinian people as a whole, and not just those living under occupation. If the Honest Reporting was indeed honest it would expose the pronounced media bias in the West shielding Israel from international accountability and obscuring the severity of Palestinian grievances under international law and morality.

 

The world media treatment of this massive Palestinian strike is typical, although nevertheless disappointing. It gives meager attention to the dramatic character of such a prison protest that has continued for over a month, stimulating many solidarity demonstrations throughout occupied Palestine, a sympathy 24-hour hunger strike by South Africans including the prominent Deputy President Cyril Rhamaposa, and widespread shows of support throughout the Palestinian diaspora. The reaction of the Palestinian Authority has been evasive, with Abbas giving a token show of public support for prisoner goals, while letting it be known privately that he hopes the strike will end as soon as possible.

 

The behavior of the Israeli Prison Service is an indirect confirmation of prisoner discontent. In a sadistic taunt, Israeli settlers were allowed to have a barbecue in the parking lot in front of one of the prisons, apparently mocking the hunger strikers with the pungent aroma of meat being grilled. Worse than this, a fake video was distributed by prison official purporting to show Barghouti having a snack in his cell. This effort to discredit the strike and its leader has been angrily denied. Khader Shkirat, Barghouti’s lawyer, explained that there was no way food could be smuggled to someone in solitary, especially with frequent room searches. It was finally conceded by prison officials that food was delivered to Barghouti’s cell by prison guards trying unsuccessfully to tempt him to break the fast. Barghouti on his side responded via his lawyer, “I plan to escalate my hunger strike soon. There is no backtracking. We will continue until the end.” Barghouti, 58, has according to the last report has lost 29 pounds since the start of the strike, and now weighs 119, planning to refuse even water.

 

Even if this dire commitment is not carried through to a potentially grim finality it will not tarnish the significance of what has been undertaken, and the great reluctance of the world to focus its attention on such a display of nonviolent martyrdom. This is not the first Palestinian prison strike motivated by abusive prison conditions and instances of administrative detention, arresting and jailing without any formal charges. But it appears to be the most consequential due to the participation of Marwan Barghouti along with so many other Palestinian prisoners as well as producing many displays of solidarity beyond the prison walls.

 

As Ramzy Baroud has pointed out in an Al Jazeera article published on May 10, 2017, the strike, although putting forth demands relating to prison conditions, is really a reflection of the underlying ordeal, what he refers to as “the very reality of Palestinian life”; it is above all “a call for unity against factionalism and Israeli occupation.” The distractions created by the Trump presidency, Brexit and the rise of the European right-wing, and turmoil in the Middle East have given Israel’s leadership the political space to push their expansionist agenda toward an imposed outcome of one Jewish state imposing its will on two distinct peoples. Such an endgame for this version of colonialist displacement and subjugation of the indigenous majority population will extend Palestinian suffering in the short-run, but will over time undermine Israeli security and stability, and bring the long Palestine nightmare to an end.

 

The British leadership finally appreciated their own interests, forging a political compromise in Northern Ireland in the form of the Good Friday Agreement, which while fragile and imperfect, has mostly spared Catholics and Protestants further bloodshed. Will the Israeli and U.S. leadership grow responsive to the moral and legal imperatives that call for a sustainable and just peace between these two peoples before the political imperative of such an essential outcome assume more menacing forms?

 

Against all expectations, the South African leadership did eventually become so responsive, but only after enough pressure was exerted internally and internationally. The South African leadership produced a new dawn by releasing its prime ‘terrorist’ inmate, Nelson Mandela, from prison, and the rest is history. Marwan Barghouti is clearly available to play such an historical role in relation to Israel. It will be a tragedy if Zionist ambitions and American led geopolitics preclude this from happening! The road to peace for Israel is the similar to the road to peace for apartheid South Africa: dismantle the apartheid regime that now dominates and discriminates against the Palestinian people on a systematic and totalizing basis. Such a projected future may seem a dream, but dreams can be made to come true through the dynamics of a struggle for justice. If so, we may look back on Barghouti’s hunger strike as the beginning of a winning Palestinian endgame.

 

It is important that we appreciate that a hunger strike is not only a pure form of nonviolence, but is also a self-inflicted sacrifice by those who seek to exhibit their opposition to the existing state of affairs in this manner, hoping to create conditions that produce change. It is an extreme type of resistance that in its essence is an appeal to the conscience and compassion of its opponents and public opinion generally. As Gandhi found out in racist South Africa, if that conscience and compassion are not sufficiently present within a given society such tactics are futile, and violent resistance becomes the only alternative to submission and despair. Israel has been repeatedly challenged by the Palestinians to do the right thing, but responds increasingly by treating all of its adversaries as ‘terrorists’ regardless of their behavior, while itself continuing to defy international law thereby denying the most fundamental rights to the Palestinian people and repeatedly relying on excessive force to safeguard its dominance.

Irish Recollections: After the Cork Conference on ‘International Law and the State of Israel’

14 Apr

 

 

Having recently spent several days at a very intense academic conference held in seductive Cork gave me the opportunity to reflect upon earlier experiences in Ireland, admittedly an unabashedly self-indulgent diversion. I realize that this will probably disappoint most regular blog readers who subscribe either to vent their strong disagreement with my views, often accompanied by harsh assaults on my character or personality, or by those likeminded persons who share enough of a common understanding of what it means for our species to exist in biopolitical end time to find this website congenial enough to stay connected. On this occasion I am admittedly exploring the depths of autobiographical banality to take advantage of the relationship between Ireland and my own highly individual end time, as well as an earlier period of my life when dark cosmic thoughts rarely clouded my inner space.

This reflective mood was further stimulated a few days ago by an interview to be broadcast sometime soon on a Cork radio station. The interview was conducted by the kind of personable Irish young woman with dancing eyes that we dream about: She seems to dwell in realms of gleeful immediacy as imprudently as a wayward leprechaun. After a longish exchange about the visit and the visitor she poses questions of more current interest, in this instance, about the conference that brought me to the city of Cork for the first time ever. This academic event was indeed a rather unusual occurrence for this serene and magical place, one of the oldest, yet small scale, urban habitats in all of Europe. The conference [“International Law and the State of Israel: Legitimacy, Exceptionalism, and Repsponsibility”] that brought me to Cork was treated as sufficiently controversial to have been cancelled the two prior years in England, specifically at the University of Southampton whose administrators yielded to heavy pressures exerted by pro-Israeli Jewish groups. With exceptional perseverance, the Southampton conveners, determined not to be silenced, teamed up with colleagues at the University of Cork, and despite some minor friction with Irish university administrators, went ahead with the conference. It took place between March 31 and April 2 without a single disruptive glitch, three long days of serious discussion exemplifying the highest ideals and spirit of academic freedom. I will comment further about this happy outcome toward the end of this post, but in the meantime, I will without further wimpish evasion, walk softly upon the thin ice of my Irish past.

 

My earliest contact with Irish sensibility was undoubtedly my most profound. From the ages of two or three until eleven or twelve, my almost continuous companion was a young Irish woman, Bridie Horan, a recent immigrant to the U.S. from County Kerry, who became more of a mother to me than my biological mother who was supremely unmotherly, a quality undoubtedly accentuated by a strained marriage with my father that led to their separation, which was quickly followed by a Nevada divorce well before I was seven. During this period we moved twice, once to the countryside from mid-Manhattan, and then a year or two later back to an adjacent apartment building in New York City half a block away. Both buildings fronted Central Park, between 64th and 65th streets, and both had good views of the park. The earlier apartment building, 50 Central Park West, was the setting for the film “Four Men and a Baby.”

 

From this childhood experience, I remember particularly being taken quite often by Bridie to the neighborhood Catholic Church, absorbed by the ritual of the Mass, but performed in Latin, I didn’t grasp the religious symbolism. I did develop an appreciation of religious mystery and the power of communities of faith. In these years this was my only exposure to religious practice. My parents were totally assimilated Jews who never bothered to explain what that meant, nor did they exhibit any ethnic consciousness associated with Jewish tradition, Yiddish language, and a cultural understanding of what it meant to be a Jew in American society in the 1930s.

 

I was especially impressed by the devoutness of those devotees who daily approached the altar to receive communion. Bridie was among those who stood in line to receive a wafer and a sip of wine from a silver chalice, but she never explained why or what. It was clearly an organic part of her fragile identity, which was torn from its deep Irish roots. She retained strong nationalist feelings for Ireland, but I do not recall her speaking of her Irish life or family. She expressed hostility toward the British who terrorized her community, sending notorious colonial troops known as ‘the black and tans’ tasked with subduing the rebellious Irish.

 

I didn’t realize until now that this was my first exposure to anti-colonial struggle, but at the time it seemed to me something distant and unreal. As a somewhat loutish child I teased Bridie until tears came to her eyes by praising Winston Churchill, who as colonial overlord personified for her British cruelty to the Irish. Bridie also daily escorted me back and forth to the Ethical Cultural School a half block away where I was enrolled in pre-kindergarten from the age of three. She was very Irish in her temperament and way of speaking, and remains a vivid remembrance brought to life while in Cork.

 

Bridie would also take me to visit friends of hers, presenting me as if her own child, a feeling that I remember enjoying at the time without much thought about what this meant. After the divorce of my parents and my mother’s departure, first for NYC, and later California, I lived briefly with my father in Pound Ridge, NY, near Stamford, Connecticut, for a year or so, before we returned to New York. We lived in a rather modern house far from the nearest neighbor, representing it seemed a final effort to save a doomed marriage. What I remember most from this period of rural isolation was acute loneliness, a fear of snakes, affection for snowscapes, wiling away hours hitting a jai-lai ball against the garage wall, and an early minor talent in basement table tennis. I was so alone that I even listened to news broadcasts, recalling now the excited voice of network commentators describing the the onset of World War II, signaled by the attack of Germany and the Soviet Union on Poland, followed by the German attack on the Soviet Union. I had the most minimal comprehension of what was transpiring beyond a vague realization that something historically significant was unfolding. What this war meant was completely unreal to me at the time, and Bridie was probably as confused as I was, doing little to help me grasp this epochal turn of events. When the American entry into war occurred in 1941, I recall listening to a radio broadcast a few days after the war started that warned of an expected German air attack against New York reported as being only hours away. Before realizing that it was a false alarm, I felt no fear, and a kind of ill-defined disappointment that the attack never happened, disclosing my perverse ignorance of the horrors of warfare. At this time, maybe a result of wartime tensions, Bridie later ran afoul of my father for reasons that were never clear, and likely were connected with personal feelings gone astray. My father insisted that Bridie had built up an obsessive desire for a close relationship with him, but I never heard her version. His story was that it became impossible to juggle a responsible childrearing framework with an intimate connection that he denied wanting. I mourned the loss of this original Irish connection, and for weeks suffered from the loss of the only female that touched me deeply during those childhood years. It was a broken connection never to be restored.

 

Long before I went to Ireland or ever read a serious book I had a short adolescent acquaintance with Stephen Joyce, grandson of the great James Joyce, son of Helen Joyce married to the author’s son, and the sister of one of my father’s closest and most unconventional friends, Robert Kastor. I recall being told that Helen would read to the famous Irish writer as he was losing his eyesight. I remember Stephen as a congenial boy, but later lost touch with him. I was told by an Irish diplomat at Cork that Stephen grew to be a wily adult who pursued business interests linked to his grandfather’s legacy, which may or may not have been true. Perhaps, my visit to the Dublin home of Joyce twenty-five years ago and a devotional reading of Ullyses, as well as Portrait of the Artist as a Young Man, allowed me to see Ireland through the impassioned prose, flow of consciousness, and extraordinary literary rendering of the Irish imaginary by Joyce.

 

Then came Yeats and Sean MacBride, each imparting distinctive dimensions of the Irish experience, and linked through the mystery of Sean’s mother, Maud Gonne, who seemed to provide Yeats with romantic inspiration tempered by his impassioned rejection of her political alignments and aspirations. As a young adult I came to regard Yeats as the greatest poetic voice of our time, and the one that resonates most with my own somewhat pathetic strivings that persist to this day.

 

I had three significant contacts with Sean MacBride (winner of Nobel Peace Prize in 1974; Lenin Peace Prize in 1975) each of which seemed peculiarly relevant to the substantive side of this recent visit to Ireland. The first of these occurred early in 1968 when Sean was Secretary General of the International Commission of Jurists, a widely respected NGO with headquarters in Geneva. There was an impending trial of 35 political and cultural leaders of what was then called South West Africa, a territory held as a Mandate by South Africa, since independence known as Namibia. I had been asked by defense counsel to be an expert witness, an invitation that probably resulted from my role as part of the defense team that represented Liberia and Ethiopia in the International Court of Justice in a 1964-65 case focused on whether the extension of apartheid to South West Africa violated the trust relationship between South Africa as mandatory power and these two former members of the League of Nations who had the authority to raise such legal questions. The decision rendered in 1965 shocked the UN, actually supporting the basic claim of South Africa that it was acting in accord with its obligations under the mandate in good faith by doing in South West Africa what it did with respect to race relations in its own country under the heading of ‘separate development’ of distinct races. The General Assembly reacted to this decision that flaunted the moral and political anti-apartheid consensus by revoking the South African mandate, and granting independence to South West Aftrica, since known as Namibia.

 

The South African Government obviously didn’t want my participation in the trial in Pretoria as an expert witness, delaying indefinitely a decision on whether or not issue a visa. Assuming that the visa would not be issued, the defense shifted tactics, requesting that the International Commission of Jurists (a respected NGO supportive of the rule of law) designate me as an official observer of what was anticipated to be a political trial. Sean’s father, Major John MacBride, who fought on the Afrikaaner side in the Boer War, and later executed by the British due to his activist role in support of Irish revolutionary nationalism, used family connections with South African leaders to arrange my visa. It was a memorable experience, especially as the trial coincided with the Tet Offensive in Vietnam that reshaped the mainstream approach to the Vietnam War in the United States, but would be a diversion to discuss here. What was relevant to my time at Cork was this earlier exposure to apartheid as a system of discriminatory oppression in the South African context, as well as the recollection of Sean MacBride’s unlikely facilitative link that enabled me to observe and report upon the trial. My report to the International Commission of Jurists on the various horrors of the trial and the heroics of the defendants was condemned by a South African government spokesperson, observing that I wrote with ‘a poison pen’ making me subject to criminal prosecution if I dared to return to South Africa. I took this criticism as a compliment, some sense that my reportage was on target.

 

My second link to MacBride was associated with a fact-finding commission set up in Britain to investigate Israeli war crimes associated with the 1982 attack on Lebanon, including the siege of Beirut. I was invited to be Vice Chair of the Commission, and became acting Chair when Sean’s health made it impossible for him to make the trip to Lebanon and Israel to assess the evidence. The rest of us came to the Lebanese port of Jounieh by ship from Cyprus, and as we entered the harbor, there were young Lebanese women water skiing, while we could hear gunfire from the other side of the hills in the Beirut area. Again the experience was quite extraordinary as Beirut was under Israeli siege, the Maronite leader then President-elect of Lebanon, Bachir Geymayel, was assassinated, and several days later the massacres at the Sabra and Shatila refugee camps occurred with guidance and support of Israeli invading forces headed by Ariel Sharon. Returning to London, Sean took charge of the discussions leading up to the submission of our report that found Israel responsible for a series of major violations of the laws of war. Our initiative came to be known as the MacBride Commission, the report was a collective effort, with the initial draft prepared by Kader Asmal, who was living in Dublin in exile from South Africa at the time, dean of the faculty at the Trinity College of Arts and Sciences, a prominent figure in the Irish anti-apartheid campaign, and later a principal author of the South African Constitution. [published under title Report of the International Commission to enquire into reported violations of International Law by Israel during its invasion of the Lebanon (London: Ithaca Press, 1983)] Kader became the only Indian member of the cabinet formed by Nelson Mandela after his election at President of South Africa. I became a lifelong friend of Kader as a result of sharing this experience, and maintained close contact until his death a few years ago, a tragic loss on many levels of personal and public engagement.

 

The third and final link with MacBride was to serve under his chairmanship as a participant in a civil society initiative known as the London Nuclear War Tribunal held in London, 1985. In addition to Sean and myself, Dorothy Hodgkin (Nobel Prize, chemistry, 1964) and Maurice Wilkins (Nobel Prize, medicine, 1962). The proceedings involved a comprehensive inquiry into the status of nuclear weapons in relation to customary international law, and produced a declaration and series of findings and recommendations that remain relevant at present. [For the full account see Geoffrey Darnton, ed., Nuclear Weapons and International Law: From the London Nuclear Warfare Tribunal (Bournesmouth, UK: Peace Analytics, 2nd ed. 2015)].

 

There are other recollections of Ireland based on several visits to Dublin. Perhaps, the most memorable was participation with the late Fred Halliday at a conference in 1996 on the sociology and politics of terrorism that was partly held under the auspices of the army of the Republic of Ireland. After the conference there was a dinner at the army headquarters, and I was greeted on my entry to the building by a full-length portrait of William Butler Yeats. Although an ardent cultural nationalist, Yeats was a relatively conservative figure in the Irish struggle for independence, and is celebrated around the world for the lyric universality of spirit embodied so enduringly in his poetry. I continue to feel that only in Ireland would that sense of nationalism and national security become merged with reverence for a poet of global stature so displayed by the country’s armed forces.

 

Actually, the most memorable part of the experience came during dinner. I was seated next to the commander-in-chief of the army of Ireland. Midway through the dinner a waiter handed the general a note, which reported the major IRA bomb exploded in the city center of Manchester, England. His only words at the time were “I guess I won’t be going home this weekend.” Apparently, military officers could normally spend weekends with their families.

 

All of this as background to my days in Cork, culminating in the conference partly held in the City Hall of Cork (due to a compromise with university officials under Zionist pro-Israeli pressures of the sort that had led to University of Southampton cancellations), with the third and final day held on the new campus of the University of Cork, one of Europe’s most venerable universities. The extraordinary perseverance and good will of Oren Ben-Dor, a historian on the faculty at Southampton, and the willingness of the Irish organizing team at Cork to withstand the usual pressures, allowed the conference to go forward without incident.

 

The conference consisted of three long days of high quality academic presentations that were organized as panels with ample time for audience participation. It was a lively participatory audience whose member posed challenging and probing questions. I was the first of two keynote speakers (the other was Ugo Mattei, a very imaginative Italian legal scholar who insisted that there was no solution to the Israel-Palestine conflict without taking account of the broader context of neoliberal capitalism and geopolitical militarism, a position I regarded as extremely important). My talk focused on the significance of the recently released UN report, co-authored with Virginia Tilley, on Israel as an apartheid state. The basic policy contention derived from the report, which can be found on the website of this blog, is that 50 years after the 1967 War it is more appropriate to call for ‘ending apartheid’ rather than continue to mouth the slogan ‘end the occupation.’ This conceptual move is significant for at least two reasons: as signifying a shift from ‘territory’ to ‘people,’ and as a belated acknowledgement that the Palestinians as a whole (including those in refugee camps and exile, minority in Israel, and those residing in Jerusalem) are being subjugated by an Israel regime or structure of apartheid that fragments, discriminates, and dominates on the basis of race, and violates relevant international legal norms.

 

There is much more that could be said about this conference, rich in ideas and devoted to a search for a sustainable peace for both peoples on the basis of equality in form and substance. Although there was considerable attention paid to the illegitimacy of Israeli state formation, the emphasis of the conference was on finding a just peace for the future rather than dwelling upon the necessity to redress past grievances. At the same time, the past could and should not be ignored. Palestinian wounds will not heal until there a credible reconciliation process is established that includes Israeli official acknowledgements of historic wrongdoing centered on the nakba, conceived of as a process of dispossession, displacement, and domination.

 

Is Israel an Apartheid State?

26 Mar

[Prefatory Note: This post was originally published on March 22, 2017 by The Nation under the title “The Inside Story of Our UN Report Calling Israel an Apartheid State,” the text of which can be found at this link: https://www.thenation.com/article/the-inside-story-on-our-un-report-calling-israel-an-apartheid-state/ What is below is somewhat modified.]

 

 

Is Israel an Apartheid State?

 

Six months ago, the UN’s Economic and Social Commission for West Asia (ESCWA) asked Virginia Tilley and me to write a study examining the applicability of the international criminal law concept of apartheid to Israel’s policies and practices toward the Palestinian people. We were glad to accept the assignment, and conceived of our role as engaging in an academic undertaking. ESCWA, one of several UN regional commissions, requested the study as a result of an uncontested motion adopted by its 18 Arab member governments.

Almost within hours of its release on March 15, our report [bearing the title “Israel’s Practices Toward the Palestinian People and the Question of Apartheid”] was greeted by what can only be described as hysteria and derision. The newly appointed US ambassador to the UN, Nikki Haley, denounced the report and demanded that the UN repudiate it. The newly elected Secretary General, Antonió Guterres, quickly and publicly called for ESCWA to withdraw the report from its website, and when Rima Khalaf, the head of the commission, resisted, Guterres insisted. Rather than comply, Khalaf resigned, explaining her reasons in a gracious, principled letter to the Secretary General, an eloquent expression of public conscience that is itself extremely rare in UN experience and worthy of the most favorable notice and commentary. [for text of letter see Soon thereafter, the report was withdrawn from the commission’s website, despite containing a very clear disclaimer at its outset noting that the report represents the views of its authors and not necessarily that of ESCWA or the UN.

 

What is striking about this pattern of action and reaction, which resembles in many respects the US government response to the Goldstone Report (the UN Fact-Finding Mission on the Gaza Conflict of 2008-9), is the degree to which Israel’s officials and supporters, in response to criticism, have sought to discredit and wound the messenger rather than address the message by offering a detailed substantive explanation and defense. Each time such a technique succeeds in this mission of discrediting, wounding, and diverting attention the role of the UN as a promoter of the public good is weakened, and the Organization becomes rather an instrument by which dominant geopolitical forces assert their will at the expense of truth, reason, and human wellbeing.

 

Virginia Tilley, a professor of political science at Southern Illinois University Carbondale and a leading world expert on apartheid, and I, as well as ESCWA, would welcome substantive discussion and critical feedback, and we had hoped that our analysis and conclusions would provide the basis for debate, dialogue, and further consideration of the recommendations appended at the end. ESCWA, for its part, took steps to ensure that the report lived up to scholarly standards, submitting the draft text to three prominent international jurists, who had been anonymously solicited to offer objective vetting. Each submitted a strong positive appraisal along with suggestions for revision, which we gratefully incorporated before the final text was released. Against this background, it is irresponsible for government officials and others to dismiss our report as a biased polemic, and to do so damages the authority of the UN and respect for international law.

 

It is also misleading to do what the American and Israeli diplomats did, as well as the media– treating this study as if a report officially endorsed by the UN. Such treatment overlooks the disclaimer on the opening page of the report, which clearly states that the analysis and interpretations presented are those of the authors alone, and are not to be attributed to the UN. In effect, it is a document initiated by a UN agency, appraised for quality by reference to scholarly standards, but not adopted nor even endorsed at this point, although this might happen in the future, a step we as authors would welcome.

 

During my tenure as the UN’s Special Rapporteur on human rights in the occupied Palestinian territories (2008-14), I witnessed how defenders of Israel attempted to discredit critics. My reports in that post often included sharp criticisms of Israel and other actors, ranging across various topics including defiance of international law, unlawful expansion of settlements, excessive use of force, and complicity of international corporations and banks that do business for profit with the settlements, and others. To my surprise, I never received substantive pushback regarding these specific allegations, but I did have the unpleasant experience of having my words on completely unrelated issues torn out of context, and brought to the attention of UN high officials and important diplomats representing member states. Among my harshest critics were not only the usual ultra-Zionist NGOs, but also Barack Obama’s diplomats at the UN, including Susan Rice and Samantha Power, as well as then-Secretary General Ban Ki-moon. I mention this personal experience only to note that it falls into a longstanding pattern of diversionary rebuttal that prefers to smear rather than engage in reasoned debate about the important issues of law and justice at stake.

 

The international crime of apartheid was authoritatively specified in the 1973 Convention on the Suppression and Punishment of the Crime of Apartheid. The main elements of the crime consist of deliberate and systematic acts of racial discrimination with the purpose of maintaining unlawful structures of racial domination, that is, a dominant race subjugating another race. Our report also considered whether, in the context of inquiring into the presence of apartheid, it was appropriate to consider Jews and Palestinians as distinct races; we found that there were abundant grounds for doing so. As our report shows, “race” in this legal context is treated as a socially and politically constructed category developed to identify a distinct people. It has no necessary correlation with biogenetic realities, which in this case actually shows an overlap between Jews and Palestinians.

 

Even Palestinian citizens of Israel, who can vote and form political parties, are subject to many discriminatory laws that impair security and the quality of life. The report also proceeds from the proposition that whether apartheid exists or not depends on the overall treatment of the Palestinian people as a whole, and not by accepting the fragmentation that has been imposed by Israel. Adopting what we believe to be an innovative methodology, we approached this challenge by dividing the Palestinians into four domains that correspond to the manner in which Israel has exercises its authority over the course of many decades, although the specific tactics of control vary through time. In the past, a thorough study by international law scholars found that Israel’s practices in the occupied Palestinian territories are consistent with apartheid [See Virginia Tilley, ed., Beyond Occupation: apartheid, colonialism and international law in the occupied Palestinian territories [Pluto: London, 2012]. It called attention to the discriminatory treatment of Palestinians, who are subject to military administration as compared to the Jewish settler population, which enjoys the full benefit of the rule of law as it is observed in Israel in relation to Jewish nationals. That study found that “settler-only roads,” dual legal systems, and the draconian separation of the two populations into regions on the basis of race hallmarks of apartheid. Repressive practices that have made the lives of ordinary Palestinians a daily ordeal are a core dimension of this racially organized system of control. It should be also noted that according to preferred readings of international law, penalizing and criminalizing nonviolent forms of resistance to apartheid itself constitutes the crime of apartheid.

 

A second domain investigated in the report involves Palestinians who are residents of Jerusalem. Here the apartheid character of Israeli rule is exhibited in the way the government of Israel severely undermines the human security of Palestinians living in Jerusalem, manipulating their rights of residence as well as imposing a variety of discriminatory practices, ranging from fiscal measures, demolitions, to the arbitrary withholding of building permits.

 

The third domain deals with the Palestinian minority living in Israel, perhaps the most problematic component in terms of establishing a definition of apartheid that encompasses the entire Palestinian population. In this category are some 1.7 million citizens of Israel, who are allowed to form political parties and vote in elections. But this minority, which makes up about 20 percent of the overall Israeli population, is prohibited by law from challenging the proclaimed Jewish character of the state and is subject to a wide range of discriminatory nationality laws as well as administrative practices that severely restrict their rights, with effects on land acquisition, property, immigration, family reunification, and marital freedom.

International law has detached apartheid from its South African origins; it’s now a stand-alone crime against humanity that does not stand or fall by whether it contains similar features to those that constituted the apartheid regime in South Africa.

 

A fourth domain, and the one affecting the largest demographic segment, is made up of Palestinians registered as refugees by UN procedures or living under conditions of involuntary exile. In the background is Israel’s rejection of UN General Assembly Resolution 194 (1948), which confirms that Palestinians dispossessed or displaced by Israel in 1948 enjoy a right of return. General Assembly Resolution 3236 declares this right of return or repatriation to be an “inalienable right,” which thus presumably incorporates those additional several hundred thousand Palestinians later displaced by the 1967 war. As far as is known, no Palestinian displaced since the establishment of Israel in 1948 has been granted a right of return to resume residence.

 

The report argues that the crime of apartheid has been detached from its historical origins in South Africa. Neither the 1973 Convention nor the 1998 Rome Statute underlying the International Criminal Court ties apartheid to South Africa, but rather treats its practice as a stand-alone crime against humanity. Thus, there are important differences between the way apartheid operated in South Africa and the way it is currently being imposed on the Palestinians, but these differences are not relevant to the question of whether it fairly and accurately applies to Israel. One notable difference is that in South Africa the Afrikaner leadership forthrightly proclaimed apartheid as a reflection of its ideological belief in the separation of races, whereas for Israel such a structure of separation on the basis of race is denied and repudiated, and its attribution is treated as an inflammatory insult. There are other differences as well, relating to degrees of labor dependence and the demographic ratio between Jews and Palestinians.

 

This quasi-permanent structure of domination cannot be justified or explained by reference to Israel’s legitimate security needs.

Our report concludes that Israel has deliberately fragmented the Palestinian people in relation to these four demographic domains, relying on systematic discrimination, including “inhuman acts,” primarily to maintain its control and render resistance more difficult, while continuing to expand territorially at the expense of prospects for Palestinian self-determination. On the basis of these findings—backed up by detailed presentations of empirical data, including reliance on Israeli official sources—we conclude that the allegation of apartheid as applied to the Palestinian people is well founded and descriptive of the present situation, more so than the terminology of occupation.

 

As earlier suggested, we are keenly aware that our report is the work of academic investigators and does not represent an authoritative finding of apartheid by a formal judicial or governmental institution. As mentioned—contrary to media coverage and diplomatic denunciations—the report has never been endorsed or accepted by the UN, or even ESCWA. We do recommend such an endorsement, and we urge the UN, national governments, and civil society to take measures designed to encourage Israel to dismantle its apartheid regime and treat the Palestinian people in accord with the dictates of international law and human rights, as well as elementary morality.

 

The broader setting associated with our contention that Israel has become an apartheid state draws on the reality that there is no peaceful resolution to the conflict on the diplomatic horizon, and thus no foreseeable prospect for ending the discriminatory regime and the attendant suffering of the Palestinian people. This quasi-permanent structure of domination cannot be justified indefinitely by invoking Israeli security needs, which are themselves partly created by the unwillingness of Israel to respect Palestinian rights under international law. A people cannot be permanently repressed in by military force and administrative coercion ways without viewing the structure that has emerged as an apartheid regime. Indeed, part of the reason for not awaiting a more formal assessment of these charges of apartheid is our sense of urgency in ending a set of arrangements that have for so long been responsible for so much suffering and denial of basic rights, above all the right of self-determination.

 

It remains our central hope, one shared with ESCWA, that the widespread availability of this report will lead to a clearer understanding of the Palestinian plight and encourage more effective responses by the UN, by governments, and by civil society. Beyond this, it is our continuing wish that people of good will throughout the world, especially within Israel, will work toward a political solution that will finally allow Jews and Palestinians to live together in peace, with justice.