Tag Archives: Apartheid Convention

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

 

 

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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.