Apartheid wears a veil
Jonathan Ofir, Mondoweiss, Mar 19 2017
A report commissioned by the UN agency ESCWA (Economic and Social Comission for Western Asia), released Wednesday, concluded unequivocally that Israel practices Apartheid policy. It saw official daylight for two days. The spox for Israel’s Ministry of Foreign Affairs, Emmanuel Nahshon tweeted:
#UN #ESCWA has issued today a ‘Der Stürmer’ like report, NOT endorsed by @UNSG. Friendly advice – dont read it without anti nausea pills…
The report, by Richard Falk and Virginia Tilley, was taken down by order of UN Sec-Gen Guterres under harsh pressure from USrael. Under-Sec-Gen Rima Khalaf, who also heads the Beirut-based ESCWA, refused to remove the report and resigned in protest. Khalaf said:
I resigned because it is my duty not to conceal a clear crime, and I stand by all the conclusions of the report.
Fortunately, the report is available by many outlets who have saved it and reproduced it, including here. Let me first address the ‘Nazi’ comparison. I admit I have not read Der Stürmer, and have no special intention of doing so. What I can say nonetheless is that I have read every word and footnote of the 74-page report. If ‘anti-nausea’ pills were necessary, as Emmanuel Nahshon suggested, it would only have been to quell the nausea arising from the reality which this report describes in a remarkably lucid manner. It would appear that the typical ‘Nazi’ and ‘anti-Semitic’ accusations are a smokescreen to avoid discussion about the actual issues brought forth in the report. The synthesis of the report is not merely an innovative intellectual exercise. As Nelson Mandela noted, the issue of Palestine is “the greatest moral issue of our time.” Had the report regarded a long-past historical event, such as for example Apartheid in South Africa, the hyperbole accusations would no doubt be put aside in light of the grave issues addressed. Yet it is precisely because the crime is current and ongoing, that every effort is made to shoot it down by those involved. As the report notes in its Conclusions (p 50):
The situation addressed in the report is ongoing. Many investigations of crimes against humanity have concerned past behaviour or events, such as civil wars involving genocides, which have formally concluded. In such cases, the international community faces no particular pressure to act in a timely way to terminate an ongoing crime prior to investigating the legal facts of culpability. In the case of Israel-Palestine, any delay compounds the crime by prolonging the subjugation of Palestinians to the active practice of apartheid by Israel. Prompt action is accordingly imperative to avert further human suffering and end a crime against humanity that is being committed now.
That urgency means that even if one is unconvinced that the crime of Apartheid applies in full to Israel, it is important to give this report time, rather than dismiss it as ‘propaganda’. If indeed the hat fits, then the implications are grave. As further noted in the same page (f 90):
Apartheid has been considered in the annals of the UN and world public opinion to be second only to genocide in the hierarchy of criminality.
Genocide and apartheid are the only two international crimes, the commission of which States have a duty to prevent.
Those who take such matters seriously would thus do well to read the report in its entirety. I shall offer my appraisal as to why this report is so crucial. The report is arguably a ground-breaking one, in that it cuts across all the formations which serve not only the fragmentation of Palestinians in four domains, as citizens, East Jerusalemites, occupied and refugees, but also the obfuscation of the discussion about Israel’s overall policy of Apartheid. As noted in page 30:
By developing discrete bodies of law, termed “domains” in this report, for each territory and their Palestinian populations, Israel has both effected and veiled a comprehensive policy of apartheid directed at the whole Palestinian people.
The notion of Israel applying Apartheid policy has already been brought forth by Virginia Tilley in a study from 2009 for the Human Sciences Research Council of South Africa (HSRC), at the request of the South African Ministry of Foreign Affairs. The study was coordinated, co-authored and edited by Tilley under the title Occupation, Colonialism, Apartheid? A Reassessment of Israel’s Practices in the OPT under International Law. But this sort of comprehensive appraisal has not featured yet in any comprehensive UN report. The methodical comparison to the 1973 Apartheid convention provides a ‘checklist’ that is satisfied almost completely on all points. Nonetheless, as noted on p 17:
A checklist method alone, such as looking for the “inhuman acts” mentioned in the Apartheid Convention, would be a misreading of the Convention’s intention. In article II, it explicitly establishes that such acts are illustrative, not mandatory, and are crimes of apartheid only if they serve the overarching purpose of racial domination. Hence, such acts can be considered crimes of apartheid only after the existence of an “institutionalized regime of systematic oppression and domination” has been conclusively established.
Thus the report seeks to establish two main issues concerning Israeli Apartheid policy: overarching purpose and intention. The notion of ‘purpose’ comes from the Apartheid convention, as cited in p 17:
For the purpose of the present Convention, the term “the crime of apartheid”, which shall include similar policies and practices of racial segregation and discrimination as practiced in southern Africa, shall apply to the following 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 (article II).
The notion of ‘intent’ comes from the Rome Statute, (article 7 (2) (h), cited same page):
“The crime of apartheid” means inhumane acts of a character similar to those referred to in paragraph 1 [ie “when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack”], committed in the context of an institutionalized regime of systematic oppression and domination by one racial group over any other racial group or groups and committed with the intention of maintaining that regime.
Purpose and Intention are obviously two very crucial words. In customary criminal law, it is intention that can mark the difference between murder and unintentional manslaughter; It is purpose that can mark the difference between a rogue massacre and genocide. The report also qualifies (f 20 p 17):
Former special rapporteurs John Dugard and Richard Falk highlighted the problem of determining when “features of apartheid” signify that an apartheid regime is operating, which would constitute a matter that might be referred to the ICJ. For both rapporteurs, the question arose with regard to the legality of the Israeli occupation. Mr Dugard described “road apartheid” in the OPT and noted that the Israeli occupation has “features” or “elements” of apartheid. However, whether Israel is constituted as an apartheid regime remained for Mr Dugard a question still to be legally determined (A/62/275). Mr Falk adopted a similar position (A/HRC/25/67, p. 21).
The report was thus set to determine whether there is a systematic, overarching, purposeful and intentional Israeli policy of Apartheid, one which goes beyond partial appraisals of it in this or that territory. While acknowledging the different domains of Israeli policy vis-á-vis Palestinians (citizens, East Jerusalem residents, occupied and refugees), the report regards them as part of a whole. While Palestinians in domain 1 (citizens) are no doubt under the least oppressive circumstances of the four, still, systematic discrimination against them exists on an established racial basis. As well as the myriad of racist laws applying to them, there is the basic notion that they did not flee the Nakba of 1948. In the section titled ‘Demographic engineering’ (p 31), the report:
The first general policy of Israel has been one of demographic engineering, in order to establish and maintain an overwhelming Jewish majority in Israel. As in any racial democracy, such a majority allows the trappings of democracy such as democratic elections and a strong legislature, without threatening any loss of hegemony by the dominant racial group.
Theoretically one could attempt to argue that Palestinian citizens of Israel could have enjoyed completely equal rights, as Israeli apologists do regularly and misleadingly, and still the Apartheid policy could hold: Israel could be using them as an alibi or aberration to the overwhelming majority of Palestinians, upon which it practices more overt and tangible Apartheid. But Israel goes way beyond that, and the report provides examples of how Apartheid applies also for Palestinian citizens of Israel. The report also goes to a considerable extent to exclude partial, euphemistic or generalist appraisals of ‘Apartheid’ (p 13) such as:
- Defining only regimes consistent with the apartheid regime in South Africa as being apartheid, so that, by definition, digressions from South African practices preclude any charge of apartheid.
- Treating discrete practices considered to have qualities of apartheid, such as the so-called “apartheid wall” (“separation fence” or “separation barrier” in official Israeli discourse), as signifying that a State has established a comprehensive apartheid regime.
- Defining apartheid as the outcome of anonymous structural global forces, such as global corporate influences or neoliberalism, as enforced by Bretton Woods institutions.
- Defining apartheid as the aggregate body of private racist practices by the dominant society as a whole, whereby State involvement is a contingent tool for enforcing a draconian social system based on racial hierarchy, discrimination and segregation.
- Treating apartheid as pertaining only to Palestinian citizens of Israel, or only to Palestinians in the occupied territory, or excluding Palestinian refugees and involuntary exiles living outside territory under Israeli control.
Hence the question applied is whether the terms ‘Grand Apartheid’ or ‘Overarching Apartheid’ are applicable to Israel, in a singular and absolute sense. One could summate and analyze much more, but the report is available for all to read. The report concludes on the basis of overwhelming evidence that Israel is guilty of the crime of apartheid. This is no light notion. As mentioned before, apartheid is a crime against humanity second only to Genocide. If the scholarly integrity of this conclusion is to be criticized, it should follow a serious, detailed and scholarly review. The tarnish campaign by USrael has so far not even addressed the critical issues brought forth by the report. It would appear that the intent is to bury it altogether and avoid the discussion. While the report reads cogently, like a book, it was not meant as a book. It was meant as a tool for political action. Although its official path through the UN appears to have been blocked, it should serve as an important tool for study, appraisal and activism. The discussion is now in the open, whether Israel and its patrons like it or not.