Symposium Introduction: Apartheid in Israel/Palestine?

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This week the blog will be running a symposium provoked by a recent Human Rights Watch report arguing that Israel is responsible for committing the crime of apartheid within its boundaries and in the occupied Palestinian territories. This report is exemplary of an increasing trend amongst human rights activists and NGOs of labelling Israel’s policies towards the Palestinians as constituting apartheid, by contrast to the alleged commission of other crimes against humanity or war crimes. The question of whether the state of Israel is responsible for apartheid raises many questions of both law and fact, of which this symposium is not meant to be a comprehensive examination. Rather, our purpose here is mainly to explore two related themes.

The first, more legal, is whether and how a legal concept – that of apartheid – that was designed around a singular prototype – that of South Africa – can be applied to other situations that are in many ways substantially different from the prototype and have their own unique characteristics. This theme would require us to examine such questions as whether there is a distinction to be made between the state-directed prohibition of apartheid, for violations of which states may be responsible under treaty or customary law, and the international crime of apartheid for which individuals are criminally responsible; what to make of the differences between the various definitions under the Apartheid Convention and the Rome Statute; what constitutes a racial group in the sense of these definitions and whether Jewish Israelis, Arab Israelis and Palestinians constitute such groups; how apartheid as a human rights violation or an international crime should be interpreted in the context of a belligerent occupation, and so forth. Some, but not all such questions are explored by our contributors; readers may also be interested in a recent Diakonia report by Miles Jackson of the University of Oxford which examines many of them in detail.

Our second, less legal theme, is that of the construction of competing narratives, which are dominant in a given community and use labels such as apartheid to create their own realities or truths about ongoing or more distant events, and specifically employ such words for their mobilizing and (de)legitimizing power. In that the situation in Israel/Palestine is by no means unique – a similar inquiry can be made about how various actors have used (or not) the term ‘genocide’  to describe China’s treatment of the Uyghurs, or atrocities committed in Myanmar against the Rohingya, or with regard to Darfur, or Armenia, or Bosnia. In all these cases politicians, scholars and activists have used legal terms for non-legal purposes, whether noble or nefarious. And in all of these cases international lawyers and legal institutions have played a specific role – sometimes pivotal, sometimes marginal – which is embedded in a much wider, less formal, and more existential political context, often with deeply problematic results. Witness, for example, the obsession with the word ‘genocide’ that continues to this day in the countries of the former Yugoslavia, the consequent devaluation of supposedly lesser crimes, continuing controversies about whether the genocide label should be attached to the July 1995 Srebrenica massacre and only to that crime, which the judgments of international courts such as the ICTY and the ICJ have not been able to authoritatively settle, and so forth.

This particular mix of law and politics is, again, by no means unique to Israel and Palestine. Nor is the question of whether Israel is responsible for apartheid a novel one – John Dugard and John Reynolds have, among others, explored it on the EJIL’s pages. What is particularly interesting about the apartheid issue, however, is that we are seeing not only the competition of two contradictory narratives – that Israel is or is not guilty of apartheid – but of three such narratives. On the one hand is the mainstream Israeli narrative under which it is entirely absurd and counterfactual to compare Israel to South Africa, for example because Israeli Arabs enjoy political rights in Israel and participate in its institutions, because there is no racial segregation within Israel, because Palestinians have their own self-government, and because Israeli policies towards the Palestinians, including the continuation of the occupation, are driven by security concerns, by terrorist attacks against Israel and by the stated desire of terrorist organizations such as Hamas to wipe Israel off the map. On the other hand, however, there are two different accounts of how Israel is, in fact, committing apartheid against Palestinians. Under the first, mainly championed by Palestinian scholars and activists, Israel has always been guilty of apartheid; the Zionist project was colonialist and racist from its inception and inherently was one of systemic domination by one group over the other. Under the second, now increasingly espoused by external actors, including ‘mainstream’ human rights organizations, Israel’s policies towards the Palestinians have not always constituted apartheid, but have gradually evolved in that direction – Israel may not have practiced apartheid in 1981 or 2001, but is doing so in 2021. Thus, even if you believe that Israel is today practicing apartheid, much is at stake (including possibly the legitimacy of the state as a whole) in how you choose to describe it – note, in that regard, how this evolutionary apartheid narrative is explicit even in the very title of the HRW apartheid report, a threshold crossed.

These, therefore, are the themes that our contributors will be exploring. We will start off with Noura Erakat (Rutgers), who will be writing on the history of Palestinian thought on Zionism and apartheid. Carola Lingaas (VID Specialized University, Oslo) then examines the notion of a racial group for the purpose of defining apartheid, while Rania Muhareb (Galway) questions whether finding apartheid in occupied territories only is a legally and factually coherent position. Joshua Kern (9 Bedford Row) then querries the legal architecture of the HRW report, in particular its definition of apartheid, while Eugene Kontorovich (George Mason) criticizes the report as baseless and biased. A post by the HRW team who worked on their apartheid report concludes the symposium.

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Nicolas Boeglin says

July 5, 2021

Dear Professor Milanovic

Thanks you very much and congratulations for this excellent initiative.

We have to thanks HRW for its report, that seems to have had a significant impact in academics, american and european NGOs and other circles.

I share with you an our colleagues a brief note recently posted on recent CERD´s decision in the case Palestine vs Israel:

"Communication Palestine contre Israel: étape relative à l'admissibilité franchie",

available at:

https://derechointernacionalcr.blogspot.com/2021/06/communication-palestine-contre-israel.html

I was just wondering why human rights centres all over the world and academic sites specialised in human rights and discrimination have not published analisis / commentaries on this recent CERD decision and would be extremely interested if you or someone else has a response to this question. If I´m not wrong, only EJIL-Talk recently posted an commentary on this CERD´s decision by Professor Jan Eiken.

Yours sincerely

Nicolas Boeglin