Israeli Policies Satisfy the Definition of Apartheid Under International Law

Washington, D.C. is in turmoil as both Republicans and Democrats try to denounce Amnesty International. the report it released this month, which describes Israel as an “apartheid state” and alleges that the human rights abuses committed against Palestinians by the State of Israel constitute crimes against humanity under international law.

There is little new in the report. Many other human rights organisations, including the UN have long since reached the same conclusion. Many Israelis are in agreement with Israel’s status as an apartheid nation. Even Yossi Sadi, the late Israeli politician, was a minister of education, and the environment in the late 1990s. said the following in 2008The Israeli newspaper Haaretz: “What acts like apartheid, is run like apartheid and harasses like apartheid, is not a duck — it is apartheid.”

Even so, the report provoked an explosion of rage in the United States — most likely among the same group of people who used to object to critiques of South Africa’s system of apartheid and who viewed Nelson Mandela as a terrorist. The United States also witnessed the same frenzy of anger in 2017 when Richard Falk (UN Special Rapporteur on human rights in Palestine occupied territories) published a United Nations report accusing Israel of crimes against humanity and calling it an apartheid nation.

In light of Amnesty International’s new report, we asked Richard Falk to share his thoughts on the latest findings about Israeli apartheid and crimes against humanity. Falk is professor emeritus in international law and practice at Princeton University. He taught there for almost 50 years. He also chairs Global Law at Queen Mary University London. This new center for climate crime has been launched by Falk. He is also the Olaf PalmeVisiting Professor in Stockholm, and VisitingDistinguished Professor at University of Malta’s Mediterranean Academy of Diplomatic Studies. Falk was named a Special Rapporteur of the United Nations on the human rights situation in the Palestinian territories occupied from 1967 to 2008. Falk is the author of more than 50 books, including a memoir. Public Intellectual: The Life and Times of a Citizen Pilgrim (2021).

C.J. Polychroniou: Amnesty International’s new report exposes Israeli abuses against Palestinians. The report reveals that Israel has imposed a form domination and oppression on Palestinians under its control, which qualifies for an international system of apartheid. It also affirms the 2017 United Nations Report that you helped produce, and for which Nikki Haley personally attacked you at the Security Council. Israel claims that the report is full if lies and some of its strongest allies (the U.S.., U.K., and Germany) reject the idea of Israel being an apartheid country. Let’s start with the most basic question of all: Is there anything in the report that is not true? If not, then why has the report caused so much bipartisan fury in America?

Richard Falk: I believe it is important that the Amnesty International Report be viewed in the larger context of Israeli Apartheid perceptions over the past five years since the publication of the United Nations Economic and Social Commission for Western Asia’s (ESCWA)Report on Israeli Practices Towards the Palestinian People and the Question of Apartheid” in 2017.

Two comprehensive reports from respected human rights organizations in 2021 added weight to apartheid claims. The first one — titled “A Regime of Jewish Supremacy from the Jordan River to the Mediterranean Sea: This is Apartheid” — was published in 2021 by the most established and internationally trusted Israeli NGO devoted to the protection of human rights, B’Tselem. It has earned a stellar reputation for professionalism through the years. The second report — titled “A Threshold Crossed: Israeli Authorities and the Crimes of Apartheid and Persecution” — was issued in April 2021 by Human Rights Watch, the flagship human rights civil society organization in the United States with offices around the world.

The Amnesty International report released this February — titled “Israel’s Apartheid Against the Palestinians: Cruel System of Domination and Crime Against Humanity” — should be seen as the culmination of a trend validating allegations of Israeli apartheid, at least within international civil society.

To dismiss and denigrate these reports adhering to the highest human rights research standards — as Israeli and American leaders and spokespersons have attempted to do, calling the Amnesty International report full of “lies” and the work of “anti-Semites” — is a shameless slander. This inflamatory language is intended to shift the conversation away from the message to its messenger. This interpretation of the tactics used by those who rejected the Amnesty International Report is strengthened by the lack of any serious effort made to refute the substantive charges. The Amnesty International report has been met with a bipartisan, angry rejection in Congress. There has also been virtually silence on mainstream TV and print media. How different would the U.S. react to an Amnesty report summarizing Hong Kong’s demonstrations and condemning China’s denial of human right to the Uyghur majority? The obvious conclusion is that international law, human rights, and normative principles are used by the U.S. government to implement geopolitical objectives.

Another aspect of context seems to be very relevant. This Israeli campaign to demonize Israel’s protections of human rights in Israel (and Occupied Palestinian Territories) should be taken into account when Amnesty International is being criticized. The most dramatic move of this character was the executive order issued on October 19, 2021, by the Israeli Defense Minister, Benny Gantz, declaring six of the most respected civil society organizations in the West Bank to be “terrorist organizations” on the basis of secret and undisclosed evidence deemed “legally dubious” even in liberal Israeli media venues such a Haaretz.

A large sector of public opinion in North America and Europe, including in liberal Zionist circles, was shocked by Gantz’s crude move, which was followed by a milder declaration from Major General Yehuda Fuchs, the military commander in the West Bank, that five of the six organizations listed by Gantz were “unlawful associations” under his authority to issue Emergency Regulations. (The only organization not included on the list was previously so designated). General Fuchs didn’t repeat the harsher condemnation made to Gantz by General Fuchs, but the intent was the exact same: to hinder donors and to neutralize civil societies’ efforts to cope with the hardships caused by the Israeli occupation of the West Bank for a prolonged period and subsequent violations of international human rights law.

A final issue of context results from Israel’s Knesset in the form of the 2018 Basic Law proclaiming Israel as the Nation-State of the Jewish people, who alone have the right of self-determination within Israel’s still unspecified borders, with the settler communities on the West Bank clearly intended to be incorporated as part of Israel. The extraordinary claim of Jewish exclusivity within an area that has been for centuries home to a majority Palestinian population is of paramount importance. In 1917, Palestine’s Jewish population was less than 10%. This was despite 20-year-long efforts by the Zionist Movement to settle Palestine.

These contextual issues can be helpful when evaluating the Amnesty International Report and the criticisms it has received. Your question about whether the Israeli response is credible: There will be contradictory interpretations of evidence in long reports such as this one. The legitimacy of these diverse interpretations of the evidence is crucial for the legal profession. Yet, having collaboratively written one report and carefully read the others, I can assure you that there is no “lie” or even irresponsible allegation in any of the four reports. Due to the sensitive nature and reality of apartheid allegations directed at Israel, as well as the fact that Israel and its most ardent supporter use dirty tactics to discredit critics, an objective reading of the reports would confirm that they meet the highest standards of competence. Unlike the apartheid leaders of South Africa, Israel’s leaders deny the charges of apartheid altogether rather than defend their appropriateness given the nature of Israel as a state of the Jewish people, and instead irresponsibly attack the integrity of the report and the despicable motivations attributed to its sponsors.

You also understandably ask “why the fury?” If the reports themselves are not mendacious but are instead serious objective assessments of allegations, then why would Israel not respond in kind with contrary interpretations of the evidence or by a show that the Israeli system of control is consistent with a reasonable construction of Israeli security imperatives? There are many skilled jurists in Israel who support the Israeli policies of Jewish supremacy. For instance, the Israeli Supreme Court upheld the legality of 2018 Basic Law, and its chief judge even had the temerity to assert that the law didn’t alter the democratic character of the Israeli state.

I suppose that at some point an attempt will be made to put forward an argument, differing in nature from South Africa’s overt legal, moral and political defense of apartheid. Israel would not admit to apartheid, but would argue against its validity by denying the basic charges. Such an approach by way of legalism will be quite a stretch given the essentially uncontested evidence that Israel’s policies and practices do satisfy the definition of apartheid as accepted in international law circles, which rests on systematic and specific intent to impose a racially coded system of domination on a subjugated ethnicity.

I would argue that Israel was administering race relations in accordance with an apartheid ethos since the 1948 War, when more than 700,000.00 Palestinians were expelled from their homeland and most of them fled to neighboring Arab countries. The wartime mass exodus of hundreds of Palestinian villages was an additional step. An official blanket denial of Palestinians’ international right of return was a clear indication of Israeli intentions. These features accompanying the establishment of Israel lend credence to the view that apartheid was integral to Israel’s state-building project all along.

The growing consensus in civil society that Israel’s treatment of the Palestinians amounts is causing Israel to be deeply troubled. Apartheid is one of the crimes against humanity listed in Article 7 under the Rome Statute which governs the operations and activities of the International Criminal Court. According to the Amnesty International Report, apartheid must be ended if it exists. While Israel has refused international law standards to govern its behavior, it deeply regrets being so charged. It is especially reactive to critics and organizations that have a positive and generally apolitical reputation, which includes Amnesty International, Human Rights Watch and B’Tselem.

There is still the puzzle posed by Israel’s long record of defying international law without suffering adverse consequences, a position made possible by the unconditional geopolitical support provided by the United States, which is also often reinforced by its European allies. It is remarkable that, despite the civil society consensus and presumably fearing backlash, very few governments other that that of South Africa after apartheid have been willing to accept the apartheid allegation within intergovernmental contexts.

It is not unreasonable for Israeli officials or think tank policy experts, however. It has suffered a serious setback, even though Israel will not budge on the apartheid allegations at this point or change its policies of victimization and dominance, Since 1945, symbolic politics has been a key factor in the resolutions of international and domestic conflicts. This is contrary to the anachronistic belief held by political realists that the flow and history of the world is influenced by relative military capabilities. It should be obvious to realize that the anticolonial wars were won not by the side controlling the combat zones, but by the nationalists who prevailed on the symbolic battlefields known as Legitimacy Wars.

The U.S. experience in Vietnam, Iraq, and Afghanistan highlights various aspects of this shift in post-World War II power balances that result from the pursuit of legitimate grievances and the weakening capabilities that result from losing the Legitimacy War. Israel has also learned from South Africa that anti-racism, and anti-colonialism can have strong mobilizing appeals in modern world society. These appeals can give rise to powerful global solidarity camps that encourage national resistance and ultimately influence the calculations and decisions of political leaders. Such concerns help explain Israel’s excessively punitive reaction to the nonviolent Boycott, Divestment and Sanctions (BDS) campaign.

Let’s talk about the concept of apartheid. There is clearly severe discrimination inside Israel against Palestinians, but one could argue that there are many analogues elsewhere, including in the U.S. What are the similarities between apartheid South Africa and contemporary Israel (a comparison, by the way, which Amnesty International’s report shies away from) in terms of the latter’s treatment of Palestinians living inside Israel?

The criminal internationalization and establishment of South African racial supremacy was gradual. It featured the role of the United Nations in a campaign of delegitimation of South Africa’s form of racism, first concentrating on the former German colony that came under the control of Pretoria after World War I, and later reaching to the internal approach taken by the Afrikaner leadership in South Africa. This was the most direct violation of territorial sovereignty in the early years of the UN. It led to the international declaration of apartheid a crime under the 1973 International Convention on the Suppression and Punishment of Apartheid and, more recently, in Article 7 of the Rome Statute which governs the International Criminal Court. It is important to remember that the origins and spread of this crime are tied to South Africa’s experience. The Rome Statute governing the International Criminal Court enumerates any system of victimization and overt domination based on race.

Article 2 of the 1973 International Convention on the Suppression and Punishment of Apartheid provides the most common definition of apartheid. Racism is defined as discrimination that is based on the notions of ethnic superiority and/or inferiority. However, it does not necessarily refer to apartheid. For example, the Nazi genocidal approach did not concern itself with using the state’s administrative apparatus to keep the races separate, since its genocidal goal was to exterminate any races considered inferior, particularly Jews and Roma.

Although seperation and racial discriminatory policy and practices are important components of apartheid forms and control, they lack the element or specific intent (as demonstrated and sustained by cruel acts) that would allow them to form a system with domination for the purpose of keeping subjugated races under direct control of the dominant. This has been done in Israel and Occupied Palestinian by the domination of Jews through a variety of administrative decrees and nationality law restricting immigration of non Jews and denying Palestinian refugees their right to return, which is an international legal right.

Even the sort of systemic racism that exists in the United States is embedded in the socio-economic-culture of the society rather than functioning as an expression of the overt ideology and practices of the state. While sub-national political entities can be complicit in racist policies to varying degrees, they are often allowed to influence the behavior and attitudes of public institutions. The United States continues being shaped by its notorious past which included a genocidal approach towards the Indigenous community, and a labor system in agricultural that was based upon generations of slavery. This dubious legacy is illustrated by the disposition in the South of trial juries to acquit white defendants accused of murdering Black people, while rushing to guilty verdicts — however scant the evidence — if it is a matter of a Black defendant accused of murdering a white woman. Double standards in police work expose the roots and anti-Black racism in America. This is also supported by Black Lives Matter and the complex and contradictory social reactions to George Floyd’s police homicide in Minneapolis, Minnesota, in May 2020.

The similarities between South African apartheid and Israeli apartheid are due to the historical and ideological stories of both countries, in which European settlers subjugated, exploited, and displaced the Indigenous population and claimed ethnic supremacy based upon race. Both South Africa, Israel and South Africa denied native claims of homeland. Therefore, the settlers took control of all aspects governance with the intention to keep the natives under strict control. Lawmaking was the primary tool of the state’s control.

Fundamental demographic, economic, and ideological factors are the reasons for differences between Israel and South Africa. In South Africa, the white minority never accounted for more than 25% of the population. This meant that inclusive democracy was not considered a valid option. However, for Israel, it was essential to the Zionist Project to establish and legitimize a Jewish homeland in Palestine. This project invoked biblical and historical connections to the land that dated back hundreds of years. Israel’s first and most illustrious president, David Ben Gurion, despite his secularized Judaism, famously declared “the Bible shall be our weapon.”

Another fundamental difference is the economic roles of Blacks in South Africa, and Palestinians in Israel. South African wealth was mainly derived from mining and other extractive activities. This depended on a large supply of cheap labor. Contrarily, Palestinian cheap labor was seen to be undermining a well-organized labor movement at Zionist’s core and was therefore considered non-essential for Israel’s growth and development. To avoid any dependence on Palestinian labor in the future, the Israeli economy emphasized high technology, including armaments. In this regard, many on the Israeli right, even now, favor “ethnic cleansing” of Palestinians to achieve racial purity in Israel and to complete the work of de facto annexation of the West Bank. These concerns reference the so-called “demographic bomb” that is seen as posing a future threat to the presently solid Jewish majority in Israel. This threat is caused by the higher Palestinian fertility rate. This would, if Israeli annexation planning become fully realized, lead to a 50/50 division of the combined population 14 million people living in Israel and Occupied Palestinian. Most Israelis view this as unacceptable with worse to come.

I asked the question above about the relevance between apartheid South Africa, and contemporary Israel. The situation in the occupied territories is worse than apartheid. Noam Chomsky once remarked to me that “South Africa needed its Black population, and catered to them at least to a limited extent. Israel had no need of the Palestinians in the occupied territories and is making life unlivable for them.” I think this raises some crucial questions about the broader use of the term “apartheid” when it comes to describing the Israeli treatment of Palestinians in the occupied territories.

In my understanding, Chomsky’s essential insight is correct and significant, but I do not agree that South Africa catered to the Black population more than Israel caters to Palestinians. Because Israel rests its claims on being “democratic,” it caters to the Palestinian minority of 20 percent in a variety of ways to sustain its international image of political legitimacy. South Africans created color lines that denied Blacks civil and political rights. However, Palestinians in Israel have the right to vote and form their own political parties. They can also serve in government.

The Israeli ambition to control a small territory is more severe than the South African ability of relying on African townships or Bantustans to segregate, secure and control a country with a low population. In effect, the proximity and demographic vitality of the Palestinians, “the dangerous neighborhood” of hostile Arab countries, and the character of Palestinian armed resistance led Israel to be more engaged in violent repressive activities than were the South Africans, especially in Gaza. Also, Israeli concerns with demographic implications of a diminished Jewish majority led to its adoption of a politics of fragmentation involving the dispersal of Palestinians beyond Israel’s borders. South Africa, which created apartheid through the viewpoint of a minority racial, never had any to deal with these Israeli concerns.