The Apartheid Libel: A Legal Refutation

Eugene Kontorovich

Eugene Kontorovich

Professor of international law, Northwestern University

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~ Also in this issue ~

~ Also by Eugene Kontorovich ~

From the Blog

“Apartheid” isn’t just an absurd epithet when applied to Israel; it is also patently untrue according to international law. Which is why exposing the canard on legal grounds—and revealing the twisted, amoral logic behind the claim—is both easy and vital for coexistence in the Middle East.

Secretary of State John Kerry may have quickly retracted his recent off-the-record comment to the effect that without a peace agreement, Israel risks becoming “an apartheid state.” But his quip nonetheless has helped push the accusation into the mainstream conversation and ensure that it will continue to be repeated by Israel’s critics.

Yet the apartheid allegation—or, as Kerry carefully put it, the potential for apartheid accusation—has no relation to reality. To understand why, one must first understand that “apartheid” is not simply an epithet, but a legal term with strong historical connotations and a specific definition. Its origins, of course, lie in the name South Africa gave to its system of de jure segregation between blacks and whites in all aspects of life. This was done to ensure the perpetuation of white minority rule. International condemnation of this regime lead to various treaties—such as the Convention Against Apartheid and the Rome Statute of the International Criminal Court—which created and defined a “crime of apartheid.” This crime was held to mean “inhumane acts 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.” These “acts” included such things as “widespread” murder, enslavement, and so forth. The legal standard for labeling a government an “apartheid regime” is set quite high—indeed, so high that no country since the end of South African apartheid has ever received the distinction. As international human rights lawyers have observed, despite massive systematic oppression of racial and ethnic minorities in countries from China to Sri Lanka to Sudan, the apartheid label has never been applied to those countries by the U.S. or anyone else. Not surprisingly, given that it was defined in reaction to the particular policies of a particular regime, the crime of apartheid is not seen as a general concept, but rather a very specific type of crime. This makes its fairly sudden appearance in otherwise respectable discussions of Israeli-Palestinian diplomacy, and the possibility of its becoming part of the mainstream political discourse, particularly disconcerting.

The apartheid claim, as applied to Israel within the 1949 Armistice lines, is entirely absurd, with the Israeli Arab minority having full civil and political rights. The new apartheid accusation focuses on the West Bank, claiming that Israel denies Palestinians political participation on the basis of their ethnicity. (The legal definition of apartheid speaks of “racial,” rather than national or ethnic discrimination, but that is the least of the weaknesses with the apartheid accusation). That is to say, Palestinians cannot vote in Israeli elections.

The idea that Palestinians should have a right to vote in Israeli elections, however, rests on the false assumption that Israel governs them—and more specifically legislates for them. Ironically, even as the apartheid accusation was making more news than it ever had before, events transpired that proved this to be completely untrue. For example, the Palestinians left the peace process and joined 15 international organizations whose membership is open only to independent states. In addition, they began forming a national unity government between Fatah in the West Bank and Hamas in Gaza. The Palestinians can only take such actions because, as a consequence of the Oslo Accords, they have their own government—or governments. In fact, over 95 percent of Palestinians in the West Bank and Gaza live under the legislative control of the Palestinian Authority. The PA is, of course, a Palestinian government. It may be sometimes unclear whether the Palestinians are ruled from Ramallah or Gaza City, and their internal politics are far from democratic, but they are certainly not ruled from Jerusalem. Looked at objectively, there is nothing sinister in Palestinians not voting for Israeli Knesset members, any more than there is in Israeli settlers not voting in Palestinian elections. Each group votes for its own government—and the Palestinian government’s decisions dictate the vast majority of what happens in their daily lives.

Palestinian president Mahmoud Abbas shows his ink-stained finger after casting his vote in the municipal elections in the West Bank town of Al-Bireh, October 20, 2012. Photo: Issam Rimawi / Flash90

Palestinian Authority President Mahmoud Abbas shows his ink-stained finger after casting his vote in the municipal elections in the West Bank town of Al-Bireh, October 20, 2012. Photo: Issam Rimawi / Flash90

This state of affairs, moreover, has clearly resulted in Palestinian policies that Israel would never approve if it actually governed the Palestinians. These include an overtly anti-Semitic educational curriculum and television content, pensions for terrorists and the families of suicide bombers, and laws prohibiting real estate transactions with Jews on pain of death. Nor does Israel control the infrastructure of Palestinian society. The PA has its own security forces, central bank, top-level Internet domain name, and tax policy. In the realm of foreign relations, the PA has diplomatic relations with almost as many nations as Israel does. A common retort by peddlers of the apartheid canard is to dismiss the PA as simply a “Bantustan,” the term used to describe the pseudo-autonomous puppet governments set up by South Africa for its black population. In fact, the Palestinian government is very far from an Israeli puppet. As noted above, its policies markedly oppose Israel’s, and some take a self-evidently racist position toward the PA’s Jewish neighbors. In addition, the international community specifically refused to recognize South Africa’s Bantustan’s, to not give them legitimacy. In contrast, it has embraced the PA, and treats it as a full sovereign government.

Perhaps the most telling evidence that the apartheid accusation is baseless comes from the Palestinians themselves. Abbas’ successful pursuit of international recognition, for example, amounts to an admission that a policy of apartheid does not exist. To become a state under international law, as the PA claims it is, a territory must be self-governing. Abbas conceded this when he announced the “successful culmination of our state-building program” at the United Nations. Under international law, the PA can be a new country, or it can be ruled by Israel—but it cannot be both at once. Under law and logic, the Palestinians cannot have it both ways, though they do so in the world of public diplomacy.

It is true that Israel conducts security operations in the Palestinian territories. But such interventions do not amount to Israeli dominion, let alone apartheid. Conducting raids and drone strikes in Afghanistan, Pakistan, Yemen and elsewhere does not make America an apartheid regime. Indeed, if such measures did amount to apartheid, the Palestinians would be running an apartheid state themselves. While Israel arrests suspected terrorists in Palestinian-controlled areas, the Palestinians fire rockets into Israel and seek to murder innocent Israeli civilians. Through such war crimes, the Palestinians have a major impact on the daily lives of Israelis, deciding where they can go, when their schools open and close, and when they and their children suddenly have to rush for bomb shelters. Though the lives of Israelis are in part controlled by such actions, no one claims that this is apartheid, or anything close to it.

A Palestinian police officer directs traffic in the main square of the West Bank city of Ramallah, February 23, 2014. Photo: Hadas Parush / Flash90

A Palestinian police officer directs traffic in the main square of the West Bank city of Ramallah, February 23, 2014. Photo: Hadas Parush / Flash90

Indeed, if Israel is an apartheid regime, America surely fits the bill as well. The United States, for example, rules over territories largely populated by racial minorities that are denied the right to vote in congressional elections, such as Puerto Rico and the District of Columbia. Majorities in these areas reject this arrangement, but whatever its problems, it is not considered apartheid under any legal definition. Indeed, unlike the Palestinians, who have received non-member status in the UN and diplomatic immunity for their officials, these areas must content themselves with observer status in the U.S. House of Representatives. Finally, apartheid is a policy purposely imposed on a population against their will by a regime “with the intention of maintaining that regime.” Israel, in contrast, has offered the Palestinians total independence at least three times in the last 15 years. Each time, they have refused. And whatever one thinks of the Palestinians’ reasons for their refusal—mainly the question of borders and the so-called “right of return”—they have nothing to do with anything that could be described as apartheid.

There are those, like Secretary Kerry, who say that Israel may not be an apartheid state at the moment, but without a peace agreement, it could become one in the future. This argument relies on stacking two improbable predictions on top of each other.

First, there is the claim that the Palestinians will eventually become a demographic majority between the Jordan River and the Mediterranean Sea. Once this point is reached, it is assumed, the Palestinians will demand equal citizenship in a State of Israel encompassing the entire territory. This, in turn, will result in a “binational”—i.e., non-Jewish—state. Such a majority would depend on foisting the population of Gaza upon Israel as well, a bizarre notion since Israel left the formerly Egyptian-occupied territory to its own devices a decade ago. Moreover, this perverse fantasy of Kerry’s would require the Palestinians to dismantle the PA and, in essence, give up their own government and desire for a state of their own—a repudiation, in other words, of the very goal they have claimed to have all along. Even the most extreme demographic projections indicate that they would only amount to half the population of a binational state. As a result, they would go from being governed by their own leaders to being governed by a legislature at least half of which would be Jewish and Zionist. Abbas, or his successor, would no longer be a head of state, but of a Knesset faction. There is little reason to think the Palestinians and their leaders see this as a desirable outcome. Given their insistence, moreover, on expelling every single Jewish Israeli from their putative state as a minimum condition of a diplomatic agreement, it is difficult to see why the Palestinians would accept living in a country that is half- or majority-Jewish.

Palestinian Authority President Mahmoud Abbas signs documents for membership in UN organizations. Photo: PressTV / YouTube

Palestinian Authority President Mahmoud Abbas signs documents for membership in UN organizations. Photo: PressTV / YouTube

The second major assumption in Kerry’s comment is that if one day the Palestinians were to dissolve the PA and seek to merge with Israel, the latter would in fact continue to rule them while refusing to grant them equal citizenship. Yet this, in fact, even less likely than the first scenario. For one, there is no compelling reason for Israel to accept such a merger. Should the demographic threat become bad enough or the Palestinians dissolve their government, Israel could simply withdraw to its 1967 borders, divesting itself of any control over the West Bank’s Palestinian population. Indeed, Israel has already done so when it withdrew from Gaza in 2005. Such prophecies, then, make no sense in an imagined future reality. They are, rather, little more than rhetorical scare tactics. Their intention is to make Israelis believe that their future as a democratic and Jewish nation is in terrible danger. This, it is hoped, will make them more likely to accede to Palestinian demands.

Whatever critics may think about Israel’s control of parts of the West Bank, the “apartheid” label is such a gross distortion that it can only discredit them. It is inaccurate in terms of both international law and the facts on the ground. And it raises the question of why critics of Israel use the label, despite the risk of discrediting their arguments with their rhetorical overkill.

The answer can be found in the unique international response to South Africa’s apartheid regime. Numerous countries, from Turkey to Russia to Armenia, occupy and annex territory. Numerous countries—perhaps most—are grossly undemocratic, discriminate against minorities, and deny political rights to much or all of their population. Yet only the apartheid label resulted in orchestrated international sanctions that sought to completely eliminate a specific regime. Falsely applied to Israel, the accusation is clearly not a serious criticism, but a diplomatic weapon. It is not about the reality it seeks to describe, but the reaction it seeks to elicit—in a word, BDS. For some, it serves as a scare tactic to push Israel toward dangerous concessions. For others, it is a step toward literally destroying Israel as a Jewish state. Israel has paid a very high price for avoiding anything like apartheid. Creating Palestinian self-rule in Gaza and much of the West Bank has required Israel to forcibly expel its own citizens from all of Gaza and parts of the West Bank. And it has subjected Israel to an unprecedented terrorist war coordinated by the PA, as well as ongoing rocket attacks from Gaza. Yet the international community continues to perpetuate the libel of the apartheid accusation. This indifference to the price in lives and security Israel has paid seems to suggest a stark truth: Whatever Israel does, it can never be safe from such diplomatic demagoguery.

Banner Photo: Issam Rimawi / Flash90