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The Spectre of South Africa

[Image by Carlos Latuff] [Image by Carlos Latuff]

Next week, the third session of the Russell Tribunal on Palestine will convene in Cape Town’s famous District Six. In the 1970s, 60,000 residents of District Six were forcibly removed following its designation as a White Area by the apartheid regime. Based on testimony from international legal experts and witnesses from the ground in Israel/Palestine, this “International People’s Tribunal” will examine whether Israel’s rule over the Palestinian people violates the prohibition of apartheid under international law.

The Apartheid Narrative

While the divergence of views presented on the Palestine statehood bid in recent months spans as vast a spectrum as is perhaps imaginable, the single common refrain from all quarters has been that any development at the United Nations will do little in itself to alter the proverbial facts on the ground. The consolidation of those “facts”—encompassing the creeping, relentless colonization of the West Bank, the Judaization of Jerusalem, the siege of the Gaza Strip, the marginalization of Palestinian citizens within an ethnic-racial Israeli state, and the banishment of an entire refugee population—continues to plough its course, impervious to the diplomatic hullabaloo in New York. No more than four days after Mahmoud Abbas and Binyamin Netanyahu addressed the General Assembly, Israel announced the approval of a further 1,100 settlement units in occupied territory, with typically scant regard for the law of occupation and the views of the international community. The Zionist settlement enterprise is at the heart of what President Abbas described in his speech as Israel’s “colonial occupation” and “apartheid policies.” 

Apartheid, of course, is a loaded term. It is drenched in history and emotion; evoking images of oppression, brutality, privilege, resistance and, ultimately, emancipation. It has been used rhetorically and sporadically in Palestinian nationalist discourse for some time; garnering only isolated mention in commentary on the conflict throughout the 1980s and 1990s, but gaining profligacy in mainstream media circles and bestseller lists in the last ten years. As Israel’s occupation policies became ever more entrenched, prominent South Africans wrote about the painful memories of apartheid that were exhumed upon witnessing the reality in the West Bank and Gaza Strip. The South African government described Israeli practices as “reminiscent” of apartheid. Even former Israeli municipal representatives and government ministers began to criticize their own government’s treatment of the Palestinians as akin to apartheid. Memories of Hendrik Verwoerd’s statement in 1961 that “Israel, like South Africa, is an apartheid state,” of nuclear cooperation between the two allies, and of Ariel Sharon’s infatuation with the Bantustan model were resurrected. Israeli leaders on the “moderate” end of the political spectrum expressed concerns that persisting with its policies would leave Israel facing a South African-style struggle for equal rights, which would ultimately spell the collapse of Israel’s regime as an ethnic-based Jewish state.

Beyond Rhetoric

International law’s relationship with apartheid is a curious one. Although prohibited and criminalised by international law in response to the situation in southern Africa, the concept of apartheid was never given enormous attention by international lawyers, particularly in the west. Despite codification of the definition of apartheid ("inhuman acts committed for the purpose of establishing and maintaining domination by one racial group of persons over any other racial group of persons and systematically oppressing them”) and acknowledgment of its prohibition as a peremptory jus cogens norm, the global anti-apartheid struggle inhabited a space that was as much moral and political as legal. The third world bloc at the UN pushed the issue through General Assembly resolutions, but western states refused to sign the Apartheid Convention for fear of their own citizens and corporations being held accountable for aiding and assisting the apartheid regime. With the collapse of the system of racial supremacy in South Africa came the suspension of the UN treaty-monitoring body for the Apartheid Convention (the “Group of Three”), as well as the dissolution of the Special Committee against Apartheid and the UN Center against Apartheid. Underlying this was a perception among international lawyers of South African apartheid as a sui generis regime, now purged from the concerns of the international order.

Since 2007, however, the question of the relevance of apartheid to the situation of the Palestinians, not merely by analogy to South Africa but as defined by international law, has started to gain currency with authorities in the United Nations. John Dugard, former Special Rapporteur on the Human Rights Situation in the Palestinian Territories, raised the issue of whether Israel’s practices may fit the legal definition of apartheid in his January 2007 report to the Human Rights Council. President of the General Assembly, Miguel d'Escoto Brockmann, spoke in late 2008 of the importance of the United Nations using the apartheid terminology to describe Israeli policies.

This question was taken up by the Human Sciences Research Council (HSRC) of South Africa, which in 2008 convened a team of international lawyers from Palestine, Israel, South Africa and Europe to examine the matter. A 300-page study and accompanying executive summary were published in 2009, and concluded, inter alia, that there exists in the occupied Palestinian territories “an institutionalised and oppressive system of Israeli domination and oppression over Palestinians as a group; that is, a system of apartheid.” This was based on a detailed exploration of Israeli practices vis-à-vis the ‘acts of apartheid’ enumerated in the Apartheid Convention, that feed into the requisite institutionalized system. Such acts range from the violent (torture and ill-treatment, extra-judicial killing, persecution of dissent) to, perhaps more significantly, the administrative (categorisation of different population groups, permit systems, appropriation of land for exclusive Jewish use, carving up of territory into segregated reserves). The architecture of apartheid is underpinned by an Israeli legal system that affords preferential legal status and material benefits to Jews over non-Jews, stemming originally from the 1950 Law of Return and Israel’s citizenship laws, as well as by separate legal systems for Jewish-Israelis (civil law) and Palestinians (military law) in occupied territory.

Dugard’s successor as Special Rapporteur, Richard Falk, reinforced and reiterated these arguments in his August 2010 report to the General Assembly. He derived much of his claim regarding the “general structure of apartheid that exists in the Occupied Palestinian Territories” from the HSRC study, which he described as “an expert study that is both reliable and convincing.” It is this evolving international legal discourse that the Russell Tribunal on Palestine seeks to further probe.

Beyond Compartmentalization

The HSRC study was limited to the Palestinian territories occupied in 1967, in accordance with the territorial mandate of the UN Special Rapporteur. Other legal analyses, such as that by John Quigley, have examined the situation only on the Israeli side of the Green Line. The limitations of such compartmentalization in the Palestinian context—with all Palestinians subjected to a single totalizing regime of Israeli domination regardless of any artificial lines drawn between them—have been rightly critiqued on these pages. International law in general, and occupation law in particular, are implicated for placing legal and geographical masks over the realities of the situation. In that process comes the risk of legitimizing the underlying segregation and upholding the logic of what appears to be an increasingly unviable partition.

The focus of the Russell Tribunal is not so spatially constrained. It seeks to adopt a holistic approach, examining Israel’s practices against the Palestinian people as a whole, with reference to the law prohibiting apartheid. This approach entails three inherent and notable advantages.

First, it allows an examination of the prevailing situation in Israel/Palestine that is grounded in international law, yet does not fall prey to a traditionally blinkered modus operandi that accepts and constructs at least three (i.e., Israel, occupied territory, refugees) and up to five (i.e., Israel, West Bank, East Jerusalem, Gaza Strip, refugees) distinct categories of Palestinian subjects and zones. By appraising whether Israel’s rule over the Palestinians, in all of their constructed avatars, amounts to an institutionalized regime of systematic oppression and domination by one racial group over another, the Tribunal can put the core questions of equality and ethnic privilege in perspective.

Second, even if the Green Line is accepted as legal reality, the law of apartheid necessitates a more fundamental examination of Israel’s regime of occupation than can be allowed with reference to international humanitarian law. The absolute prohibition of apartheid as a form of governance stands in contrast to “grey” areas of international humanitarian law. The latter include doctrines such as proportionality and military necessity that remain prone to manipulation and distortion by narratives seeking to justify given military actions. A holistic portrait of a systematic apparatus of domination connects the dots between discrete and disparate rights violations, illuminating them against a common backdrop, and highlighting root causes rather than symptoms. It serves as a counter-point to an occupation law discourse that distorts reality by suggesting particular moments of violence as “exceptional” – the “battle of Jenin,” “Operation Cast Lead” and so on. As Nimer Sultany points out, “the occupation is no less oppressive during normal times.” This sharpens our focus on the nature of the occupation as a normative regime, as opposed to the habitual focus on specific actions undertaken within the occupation. While international humanitarian law assumes the legality and temporariness of occupation, a determination of a regime of apartheid as an intrinsically unlawful modality of governance may add credence to claims that Israel’s occupation is illegal in and of itself.

Third, the prism of apartheid provides a potentially more viable path to the resolution of the conflict than the static and apolitical categories of occupation law. In reflecting on the failure of the peace process, Edward Said advised in 1999 that it was time “to question whether the entire process begun in Oslo in 1993 is the right instrument for bringing peace between Palestinians and Israelis.” The alternatives, according to Said, were “unpleasantly simple: either the war continues (along with the onerous cost of the current peace process) or a way out, based on peace and equality (as in South Africa after apartheid) is actively sought, despite the many obstacles.” In the years that followed, as the conflict degenerated further and the occupation became further entrenched, Said’s revival of the idea of a unitary state (that had represented the dominant Palestinian position until the 1970s) was followed by a torrent of literature and academic debate on the “one-state solution.”

Commentators have noted that the one-state perspective can be usefully linked to an apartheid analysis not only in that it suggests a framework for understanding the racial dimension of the Israeli state (thus challenging prevailing assumptions of similarity with western liberal democracies), but also as it provides a normative scheme for transition on the basis of experience that apartheid can be challenged and superseded. It does bear noting, however, that while the apartheid rubric has been adopted in political science discourse primarily by advocates of a one-state solution, its invocation need not necessarily be limited to that outcome. It may also provide a framework for a comprehensive solution to the conflict through some variant of a two-state or federal model that would necessarily address the racialized nature of the Israeli state as it relates to its Palestinian citizens and refugees. This represents a more sustainable alternative to the currently pursued paradigm of Palestinian statehood with limited sovereignty in part of the occupied territories, which fails to resolve the plight of the refugees and neglects the Palestinians inside Israel.

The “Legitimacy War”

The inherent limitations of a citizen’s tribunal mechanism are obvious, and do not require rehearsing here. Nonetheless, the Russell Tribunal feeds into what Falk has described as the legitimacy war in which Palestinian civil society is engaged in an attempt to reclaim some of the ground lost to Orientalist projections of the Palestinian as an uncivilized “other.” As has been the case with the advisory opinion of the International Court of Justice on the Wall, the Goldstone Report, and many other law-based condemnations of Israeli policy, the Russell Tribunal will be denounced by apologists for the State of Israel as a form of lawfare, a politically motivated misappropriation of international law. While law is of course a site of political contestation, criticisms of Palestinian civil society, UN bodies, and the World Court alike for disingenuously misappropriating law are not gaining much traction beyond the circles of those making them.

The international campaign against apartheid in South Africa was emblematic of the struggle of the third world. With the workings of international law rarely favoring the people of the global South, it represents one of the few major success stories of the human rights movement that post-colonial nations can claim ownership of. In this sense, apartheid offers a useful lens through which to understand the engagement of the post-independence third world with international law. In the same vein, the law of apartheid today provides a valuable normative framework for deconstructing Israel’s regime of domination. It carries strategic weight in underpinning the mobilization of international solidarity with the Palestinians, which itself occupies a central space in the progressive emancipatory politics of our time. It unlocks a legal avenue that can complement political strategy. For those reasons, the examination of Israeli practices with reference to the law of apartheid to be undertaken by the Russell Tribunal on Palestine should not be dismissed lightly. 

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