March 17, 2017
The word resonated loud and
clear from South Africa. Hendrik Verwoerd, widely described as a key architect
of apartheid, was the far-right National Party’s propagandist, political
strategist and, ultimately, party leader. In 1961, as South African Prime Minister,
he noted that Israel was built on land taken ‘from the Arabs after the Arabs
lived there for a thousand years.’ The point was to express his approval and to
highlight Zionism’s common cause with the Afrikaner pioneers: ‘In that, I agree
with them. Israel, like South Africa, is an apartheid state.’
Verwoerd was able to make this
diagnosis without needing to live to see the brutality of the Israeli
occupation of the West Bank and Gaza after 1967. Israel’s apartheid foundations
were laid in its dispossession of the Palestinians in 1948. They were
reinforced by the immediate erection of colonial constitutional structures that
cemented the exclusion of the colonised.
Since then, Israeli law and
policy has only deepened the state apparatus of separation and segregation,
discrimination and domination. Over the years, countless activists, authors and
artists, as well as leading anti-apartheid figures from South Africa, have
referred to Israel’s particular brand of structural discrimination as akin to
apartheid. In the last decade, international lawyers have also begun to do
likewise, but with reference to the definition of apartheid under international
law rather than by analogy to southern Africa.
This week, a
report commissioned and published by the UN Economic and Social Commission
for Western Asia (ESCWA) has concluded that ‘Israel has established an
apartheid regime that dominates the Palestinian people as a whole’. According
to the report, the Israeli regime governing Palestinians is a racial regime of
institutionalised domination – the essence of the international legal
definition of apartheid. The maintenance of Israel’s exclusionary constitutional
character as the state of the Jewish people has entailed a “strategic
fragmentation of the Palestinian people”. It has involved expulsion of
Palestinian refugees into exile, discrimination against Palestinians inside
Israel as second-class citizens, oppression of Palestinians under occupation;
all through a concerted array of law, policy and practice that forges ‘a
comprehensive policy of apartheid’.
This finding breaks new ground
in the context of UN analysis on Israel/Palestine. Specialised UN bodies – such
as the Committee on the Elimination of Racial Discrimination and the Human
Rights Council’s Special Rapporteur on Palestine – have in recent years
categorised Israeli law and policy in terms of racial segregation and
apartheid. This framing has been geographically limited to the military
occupation of the West Bank and Gaza, however – as distinct from inside Israel
itself, or Israel’s relationship with the Palestinian people writ large.
This was a somewhat necessary
distinction, given the UN practice of analysing the occupied Palestinian
territory and Israel as two separate territories under international law. But
it was also in certain respects an artificial distinction. Much of what renders
the situation in the occupied territory as apartheid is the separate and
preferential legal system applied to Israeli settlers – a hierarchical legalism
which is central to the constitution of Israel itself. Laws on citizenship,
residency and family unification, as well as land, planning and housing rights,
apply inside Israel to benefit Jewish-Israeli citizens over Palestinians. Those
laws are then channeled into the West Bank to further stratify the population
there. Colonisers living in the settlements are endowed with legal status and
privilege that is denied to the Palestinian population of the same territory.
There are of course
differences in the modalities of Israel’s discrimination against Palestinians –
depending on whether they are inside Israel, in occupied territory, or in
exile. The crucial point that the UN report highlights, however, is that this
is nonetheless best viewed as a single overarching institutional regime which
discriminates against the Palestinian people as a whole.
For a UN Commission report to
state this so clearly, and to theorise Israel as a “racial state”, is
significant. A people’s tribunal, the Russell Tribunal on Palestine, did arrive
at similar conclusions back in 2011. The momentum that this analysis has
gathered in official UN settings since then shows the possibilities of an international
law from below – one which is not afraid to confront the realities of a state
in which increasingly discriminatory legislation has spewed thick and fast from
an ascendant far-right.
While the report’s findings do
hinge on the legal definition of apartheid, the Commission itself does not have
the authority of an international tribunal. The International Court of Justice
and the Committee on the Elimination of Racial Discrimination are among the
relevant actors when it comes to determining Israel’s state responsibility for
an unlawful apartheid regime. The International Criminal Court enters the fray
for determining the criminal responsibility of individual Israeli officials for
the perpetration of acts of apartheid, as crimes against humanity. Any adjudications
from these and other legal institutions can feed into the UN political organs
vested with the capacity to impose sanctions and arms embargoes, as was
(eventually) done with apartheid South Africa. In this context, the report
offers a potential platform for further developments in the political arena of
the UN.
A UN spokesperson has said
that ‘the report as it stands does not reflect the view of the
Secretary-General’. The report made no claim to represent the views of the UN
as a whole. It does, however, reflect the views of a regional UN commission,
made up of eighteen member states of North Africa and West Asia. And here it is
important to remember that the genesis of the UN sanctions and arms embargo
against South Africa flowed up from below and inwards from the periphery, not
down from on high or out from the core. The Third World states led the charge
against apartheid for many years in the face of Western resistance and support
for South Africa. It was 1952 when a group of thirteen Arab and Asian states
first succeeded in adding ‘The Question of Race Conflict resulting from the
policies of apartheid’ to the UN General Assembly’s agenda. It took another 25
years – after multiple abstentions and vetoes by Britain, France and the US,
and a rising global social movement against apartheid – before the Security
Council eventually imposed a mandatory arms embargo on South Africa.
In the current conjuncture,
the significance of this week’s report extends beyond Israel/Palestine.
Verwoerd’s National Party is not the only white supremacist political movement
to have seen the attraction of Israel’s constitutional structures. The
“alt-right” movement in the US is premised on a white nationalism that
incorporates very real antisemitic discourse and intimidation among its
multiplicity of racisms. At the same time, it admires Israel’s exclusionary
policies. Richard Spencer describes the alt-right project as ‘a sort of white
Zionism’ and argues, as Omri Boehm has noted, that Israel’s ethnic-based
politics is the basis of a strong, cohesive identity which the alt-right is
seeking to emulate in the US.
With the alt-right now
maintaining a foothold in the White House, it is imperative to think seriously
about the apartheid nature of Israel’s constitutional order and about how to
deepen anti-racist alliances and solidarities across borders. The Trump/Bannon
travel ban agenda of course finds some parallel in Israel’s own long-standing
border policies, and comes at a time when Israel has adopted new legislation
purporting to ban boycott adherents. In that context, the ESCWA report’s call
for member states and civil society to support and ‘broaden support for
boycott, divestment and sanctions initiatives’ is another significant political
move.
John Reynolds teaches
international law at the National University of Ireland, Maynooth.
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