Is Israel an Apartheid State?
By Richard Falk, Richard
Falk WordPress, 26 March 2017. Six months ago, the UN’s Economic and Social
Commission for West Asia (ESCWA) asked Virginia Tilley and me to write a study
examining the applicability of the international criminal law concept of
apartheid to Israel’s policies and practices toward the Palestinian people. We
were glad to accept the assignment, and conceived of our role as engaging in an
academic undertaking. ESCWA, one of several UN regional commissions, requested
the study as a result of an uncontested motion adopted by its 18 Arab member governments.
Falk WordPress, 26 March 2017. Six months ago, the UN’s Economic and Social
Commission for West Asia (ESCWA) asked Virginia Tilley and me to write a study
examining the applicability of the international criminal law concept of
apartheid to Israel’s policies and practices toward the Palestinian people. We
were glad to accept the assignment, and conceived of our role as engaging in an
academic undertaking. ESCWA, one of several UN regional commissions, requested
the study as a result of an uncontested motion adopted by its 18 Arab member governments.
Almost within
hours of its release on March 15, our report [bearing the title “Israel’s Practices
Toward the Palestinian People and the Question of Apartheid”] was greeted by
what can only be described as hysteria and derision. The newly appointed US
ambassador to the UN, Nikki Haley, denounced the report and demanded that the
UN repudiate it. The newly elected Secretary General, Antonió Guterres, quickly
and publicly called for ESCWA to withdraw the report from its website, and when
Rima Khalaf, the head of the commission, resisted, Guterres insisted. Rather
than comply, Khalaf resigned, explaining her reasons in a gracious, principled
letter to the Secretary General, an eloquent expression of public conscience
that is itself extremely rare in UN experience and worthy of the most favorable
notice and commentary. [for text of letter see Soon thereafter, the report was
withdrawn from the commission’s website, despite containing a very clear
disclaimer at its outset noting that the report represents the views of its
authors and not necessarily that of ESCWA or the UN.
hours of its release on March 15, our report [bearing the title “Israel’s Practices
Toward the Palestinian People and the Question of Apartheid”] was greeted by
what can only be described as hysteria and derision. The newly appointed US
ambassador to the UN, Nikki Haley, denounced the report and demanded that the
UN repudiate it. The newly elected Secretary General, Antonió Guterres, quickly
and publicly called for ESCWA to withdraw the report from its website, and when
Rima Khalaf, the head of the commission, resisted, Guterres insisted. Rather
than comply, Khalaf resigned, explaining her reasons in a gracious, principled
letter to the Secretary General, an eloquent expression of public conscience
that is itself extremely rare in UN experience and worthy of the most favorable
notice and commentary. [for text of letter see Soon thereafter, the report was
withdrawn from the commission’s website, despite containing a very clear
disclaimer at its outset noting that the report represents the views of its
authors and not necessarily that of ESCWA or the UN.
What is striking about this
pattern of action and reaction, which resembles in many respects the US
government response to the Goldstone Report (the UN Fact-Finding Mission on the
Gaza Conflict of 2008-9), is the degree to which Israel’s officials and
supporters, in response to criticism, have sought to discredit and wound the
messenger rather than address the message by offering a detailed substantive
explanation and defense. Each time such a technique succeeds in this mission of
discrediting, wounding, and diverting attention the role of the UN as a
promoter of the public good is weakened, and the Organization becomes rather an
instrument by which dominant geopolitical forces assert their will at the
expense of truth, reason, and human wellbeing.
pattern of action and reaction, which resembles in many respects the US
government response to the Goldstone Report (the UN Fact-Finding Mission on the
Gaza Conflict of 2008-9), is the degree to which Israel’s officials and
supporters, in response to criticism, have sought to discredit and wound the
messenger rather than address the message by offering a detailed substantive
explanation and defense. Each time such a technique succeeds in this mission of
discrediting, wounding, and diverting attention the role of the UN as a
promoter of the public good is weakened, and the Organization becomes rather an
instrument by which dominant geopolitical forces assert their will at the
expense of truth, reason, and human wellbeing.
Virginia Tilley, a professor of
political science at Southern Illinois University Carbondale and a leading
world expert on apartheid, and I, as well as ESCWA, would welcome substantive
discussion and critical feedback, and we had hoped that our analysis and
conclusions would provide the basis for debate, dialogue, and further
consideration of the recommendations appended at the end. ESCWA, for its part,
took steps to ensure that the report lived up to scholarly standards,
submitting the draft text to three prominent international jurists, who had
been anonymously solicited to offer objective vetting. Each submitted a strong
positive appraisal along with suggestions for revision, which we gratefully
incorporated before the final text was released. Against this background, it is
irresponsible for government officials and others to dismiss our report as a
biased polemic, and to do so damages the authority of the UN and respect for
international law.
political science at Southern Illinois University Carbondale and a leading
world expert on apartheid, and I, as well as ESCWA, would welcome substantive
discussion and critical feedback, and we had hoped that our analysis and
conclusions would provide the basis for debate, dialogue, and further
consideration of the recommendations appended at the end. ESCWA, for its part,
took steps to ensure that the report lived up to scholarly standards,
submitting the draft text to three prominent international jurists, who had
been anonymously solicited to offer objective vetting. Each submitted a strong
positive appraisal along with suggestions for revision, which we gratefully
incorporated before the final text was released. Against this background, it is
irresponsible for government officials and others to dismiss our report as a
biased polemic, and to do so damages the authority of the UN and respect for
international law.
It is also misleading to do what
the American and Israeli diplomats did, as well as the media– treating this
study as if a report officially endorsed by the UN. Such treatment overlooks
the disclaimer on the opening page of the report, which clearly states that the
analysis and interpretations presented are those of the authors alone, and are
not to be attributed to the UN. In effect, it is a document initiated by a UN
agency, appraised for quality by reference to scholarly standards, but not
adopted nor even endorsed at this point, although this might happen in the
future, a step we as authors would welcome.
the American and Israeli diplomats did, as well as the media– treating this
study as if a report officially endorsed by the UN. Such treatment overlooks
the disclaimer on the opening page of the report, which clearly states that the
analysis and interpretations presented are those of the authors alone, and are
not to be attributed to the UN. In effect, it is a document initiated by a UN
agency, appraised for quality by reference to scholarly standards, but not
adopted nor even endorsed at this point, although this might happen in the
future, a step we as authors would welcome.
During my tenure as the UN’s
Special Rapporteur on human rights in the occupied Palestinian territories
(2008-14), I witnessed how defenders of Israel attempted to discredit critics.
My reports in that post often included sharp criticisms of Israel and other
actors, ranging across various topics including defiance of international law,
unlawful expansion of settlements, excessive use of force, and complicity of
international corporations and banks that do business for profit with the
settlements, and others. To my surprise, I never received substantive pushback
regarding these specific allegations, but I did have the unpleasant experience
of having my words on completely unrelated issues torn out of context, and
brought to the attention of UN high officials and important diplomats
representing member states. Among my harshest critics were not only the usual
ultra-Zionist NGOs, but also Barack Obama’s diplomats at the UN, including
Susan Rice and Samantha Power, as well as then-Secretary General Ban Ki-moon. I
mention this personal experience only to note that it falls into a longstanding
pattern of diversionary rebuttal that prefers to smear rather than engage in
reasoned debate about the important issues of law and justice at stake.
Special Rapporteur on human rights in the occupied Palestinian territories
(2008-14), I witnessed how defenders of Israel attempted to discredit critics.
My reports in that post often included sharp criticisms of Israel and other
actors, ranging across various topics including defiance of international law,
unlawful expansion of settlements, excessive use of force, and complicity of
international corporations and banks that do business for profit with the
settlements, and others. To my surprise, I never received substantive pushback
regarding these specific allegations, but I did have the unpleasant experience
of having my words on completely unrelated issues torn out of context, and
brought to the attention of UN high officials and important diplomats
representing member states. Among my harshest critics were not only the usual
ultra-Zionist NGOs, but also Barack Obama’s diplomats at the UN, including
Susan Rice and Samantha Power, as well as then-Secretary General Ban Ki-moon. I
mention this personal experience only to note that it falls into a longstanding
pattern of diversionary rebuttal that prefers to smear rather than engage in
reasoned debate about the important issues of law and justice at stake.
The international crime of
apartheid was authoritatively specified in the 1973 Convention on the
Suppression and Punishment of the Crime of Apartheid. The main elements of the
crime consist of deliberate and systematic acts of racial discrimination with
the purpose of maintaining unlawful structures of racial domination, that is, a
dominant race subjugating another race. Our report also considered whether, in
the context of inquiring into the presence of apartheid, it was appropriate to
consider Jews and Palestinians as distinct races; we found that there were
abundant grounds for doing so. As our report shows, “race” in this legal
context is treated as a socially and politically constructed category developed
to identify a distinct people. It has no necessary correlation with biogenetic
realities, which in this case actually shows an overlap between Jews and
Palestinians.
apartheid was authoritatively specified in the 1973 Convention on the
Suppression and Punishment of the Crime of Apartheid. The main elements of the
crime consist of deliberate and systematic acts of racial discrimination with
the purpose of maintaining unlawful structures of racial domination, that is, a
dominant race subjugating another race. Our report also considered whether, in
the context of inquiring into the presence of apartheid, it was appropriate to
consider Jews and Palestinians as distinct races; we found that there were
abundant grounds for doing so. As our report shows, “race” in this legal
context is treated as a socially and politically constructed category developed
to identify a distinct people. It has no necessary correlation with biogenetic
realities, which in this case actually shows an overlap between Jews and
Palestinians.
Even
Palestinian citizens of Israel, who can vote and form political parties, are
subject to many discriminatory laws that impair security and the quality of
life. The report also proceeds from the proposition that whether apartheid
exists or not depends on the overall treatment of the Palestinian people as a
whole, and not by accepting the fragmentation that has been imposed by
Israel. Adopting what we believe to be an innovative methodology, we
approached this challenge by dividing the Palestinians into four domains that
correspond to the manner in which Israel has exercises its authority over the
course of many decades, although the specific tactics of control vary through
time. In the past, a thorough study by international law scholars
found that Israel’s practices in the occupied Palestinian territories are
consistent with apartheid [See Virginia Tilley, ed., Beyond Occupation: apartheid, colonialism and international law in
the occupied Palestinian territories [Pluto: London, 2012]. It
called attention to the discriminatory treatment of Palestinians, who are
subject to military administration as compared to the Jewish settler
population, which enjoys the full benefit of the rule of law as it is observed
in Israel in relation to Jewish nationals. That study found that “settler-only
roads,” dual legal systems, and the draconian separation of the two populations
into regions on the basis of race hallmarks of apartheid. Repressive practices
that have made the lives of ordinary Palestinians a daily ordeal are a core
dimension of this racially organized system of control. It should be also noted
that according to preferred readings of international law, penalizing and
criminalizing nonviolent forms of resistance to apartheid itself constitutes
the crime of apartheid.
Palestinian citizens of Israel, who can vote and form political parties, are
subject to many discriminatory laws that impair security and the quality of
life. The report also proceeds from the proposition that whether apartheid
exists or not depends on the overall treatment of the Palestinian people as a
whole, and not by accepting the fragmentation that has been imposed by
Israel. Adopting what we believe to be an innovative methodology, we
approached this challenge by dividing the Palestinians into four domains that
correspond to the manner in which Israel has exercises its authority over the
course of many decades, although the specific tactics of control vary through
time. In the past, a thorough study by international law scholars
found that Israel’s practices in the occupied Palestinian territories are
consistent with apartheid [See Virginia Tilley, ed., Beyond Occupation: apartheid, colonialism and international law in
the occupied Palestinian territories [Pluto: London, 2012]. It
called attention to the discriminatory treatment of Palestinians, who are
subject to military administration as compared to the Jewish settler
population, which enjoys the full benefit of the rule of law as it is observed
in Israel in relation to Jewish nationals. That study found that “settler-only
roads,” dual legal systems, and the draconian separation of the two populations
into regions on the basis of race hallmarks of apartheid. Repressive practices
that have made the lives of ordinary Palestinians a daily ordeal are a core
dimension of this racially organized system of control. It should be also noted
that according to preferred readings of international law, penalizing and
criminalizing nonviolent forms of resistance to apartheid itself constitutes
the crime of apartheid.
A second domain investigated in
the report involves Palestinians who are residents of Jerusalem. Here the
apartheid character of Israeli rule is exhibited in the way the government of
Israel severely undermines the human security of Palestinians living in
Jerusalem, manipulating their rights of residence as well as imposing a variety
of discriminatory practices, ranging from fiscal measures, demolitions, to the
arbitrary withholding of building permits.
the report involves Palestinians who are residents of Jerusalem. Here the
apartheid character of Israeli rule is exhibited in the way the government of
Israel severely undermines the human security of Palestinians living in
Jerusalem, manipulating their rights of residence as well as imposing a variety
of discriminatory practices, ranging from fiscal measures, demolitions, to the
arbitrary withholding of building permits.
The third domain deals with the
Palestinian minority living in Israel, perhaps the most problematic component
in terms of establishing a definition of apartheid that encompasses the entire
Palestinian population. In this category are some 1.7 million citizens of
Israel, who are allowed to form political parties and vote in elections. But
this minority, which makes up about 20 percent of the overall Israeli
population, is prohibited by law from challenging the proclaimed Jewish
character of the state and is subject to a wide range of discriminatory
nationality laws as well as administrative practices that severely restrict
their rights, with effects on land acquisition, property, immigration, family
reunification, and marital freedom.
Palestinian minority living in Israel, perhaps the most problematic component
in terms of establishing a definition of apartheid that encompasses the entire
Palestinian population. In this category are some 1.7 million citizens of
Israel, who are allowed to form political parties and vote in elections. But
this minority, which makes up about 20 percent of the overall Israeli
population, is prohibited by law from challenging the proclaimed Jewish
character of the state and is subject to a wide range of discriminatory
nationality laws as well as administrative practices that severely restrict
their rights, with effects on land acquisition, property, immigration, family
reunification, and marital freedom.
International law has detached
apartheid from its South African origins; it’s now a stand-alone crime against
humanity that does not stand or fall by whether it contains similar features to
those that constituted the apartheid regime in South Africa.
apartheid from its South African origins; it’s now a stand-alone crime against
humanity that does not stand or fall by whether it contains similar features to
those that constituted the apartheid regime in South Africa.
A fourth domain, and the one
affecting the largest demographic segment, is made up of Palestinians
registered as refugees by UN procedures or living under conditions of
involuntary exile. In the background is Israel’s rejection of UN General
Assembly Resolution 194 (1948), which confirms that Palestinians dispossessed
or displaced by Israel in 1948 enjoy a right of return. General Assembly
Resolution 3236 declares this right of return or repatriation to be an
“inalienable right,” which thus presumably incorporates those additional several
hundred thousand Palestinians later displaced by the 1967 war. As far as is
known, no Palestinian displaced since the establishment of Israel in 1948 has
been granted a right of return to resume residence.
affecting the largest demographic segment, is made up of Palestinians
registered as refugees by UN procedures or living under conditions of
involuntary exile. In the background is Israel’s rejection of UN General
Assembly Resolution 194 (1948), which confirms that Palestinians dispossessed
or displaced by Israel in 1948 enjoy a right of return. General Assembly
Resolution 3236 declares this right of return or repatriation to be an
“inalienable right,” which thus presumably incorporates those additional several
hundred thousand Palestinians later displaced by the 1967 war. As far as is
known, no Palestinian displaced since the establishment of Israel in 1948 has
been granted a right of return to resume residence.
The report argues that the crime
of apartheid has been detached from its historical origins in South Africa.
Neither the 1973 Convention nor the 1998 Rome Statute underlying the
International Criminal Court ties apartheid to South Africa, but rather treats
its practice as a stand-alone crime against humanity. Thus, there are important
differences between the way apartheid operated in South Africa and the way it
is currently being imposed on the Palestinians, but these differences are not
relevant to the question of whether it fairly and accurately applies to Israel.
One notable difference is that in South Africa the Afrikaner leadership
forthrightly proclaimed apartheid as a reflection of its ideological belief in
the separation of races, whereas for Israel such a structure of separation on
the basis of race is denied and repudiated, and its attribution is treated as
an inflammatory insult. There are other differences as well, relating to
degrees of labor dependence and the demographic ratio between Jews and
Palestinians.
of apartheid has been detached from its historical origins in South Africa.
Neither the 1973 Convention nor the 1998 Rome Statute underlying the
International Criminal Court ties apartheid to South Africa, but rather treats
its practice as a stand-alone crime against humanity. Thus, there are important
differences between the way apartheid operated in South Africa and the way it
is currently being imposed on the Palestinians, but these differences are not
relevant to the question of whether it fairly and accurately applies to Israel.
One notable difference is that in South Africa the Afrikaner leadership
forthrightly proclaimed apartheid as a reflection of its ideological belief in
the separation of races, whereas for Israel such a structure of separation on
the basis of race is denied and repudiated, and its attribution is treated as
an inflammatory insult. There are other differences as well, relating to
degrees of labor dependence and the demographic ratio between Jews and
Palestinians.
This quasi-permanent structure of
domination cannot be justified or explained by reference to Israel’s legitimate
security needs.
domination cannot be justified or explained by reference to Israel’s legitimate
security needs.
Our report concludes that Israel
has deliberately fragmented the Palestinian people in relation to these four
demographic domains, relying on systematic discrimination, including “inhuman
acts,” primarily to maintain its control and render resistance more difficult,
while continuing to expand territorially at the expense of prospects for
Palestinian self-determination. On the basis of these findings—backed up by
detailed presentations of empirical data, including reliance on Israeli
official sources—we conclude that the allegation of apartheid as applied to the
Palestinian people is well founded and descriptive of the present situation,
more so than the terminology of occupation.
has deliberately fragmented the Palestinian people in relation to these four
demographic domains, relying on systematic discrimination, including “inhuman
acts,” primarily to maintain its control and render resistance more difficult,
while continuing to expand territorially at the expense of prospects for
Palestinian self-determination. On the basis of these findings—backed up by
detailed presentations of empirical data, including reliance on Israeli
official sources—we conclude that the allegation of apartheid as applied to the
Palestinian people is well founded and descriptive of the present situation,
more so than the terminology of occupation.
As earlier suggested, we are
keenly aware that our report is the work of academic investigators and does not
represent an authoritative finding of apartheid by a formal judicial or
governmental institution. As mentioned—contrary to media coverage and
diplomatic denunciations—the report has never been endorsed or accepted by the
UN, or even ESCWA. We do recommend such an endorsement, and we urge the UN,
national governments, and civil society to take measures designed to encourage Israel
to dismantle its apartheid regime and treat the Palestinian people in accord
with the dictates of international law and human rights, as well as elementary
morality.
keenly aware that our report is the work of academic investigators and does not
represent an authoritative finding of apartheid by a formal judicial or
governmental institution. As mentioned—contrary to media coverage and
diplomatic denunciations—the report has never been endorsed or accepted by the
UN, or even ESCWA. We do recommend such an endorsement, and we urge the UN,
national governments, and civil society to take measures designed to encourage Israel
to dismantle its apartheid regime and treat the Palestinian people in accord
with the dictates of international law and human rights, as well as elementary
morality.
The broader setting associated
with our contention that Israel has become an apartheid state draws on the
reality that there is no peaceful resolution to the conflict on the diplomatic
horizon, and thus no foreseeable prospect for ending the discriminatory regime
and the attendant suffering of the Palestinian people. This quasi-permanent
structure of domination cannot be justified indefinitely by invoking Israeli
security needs, which are themselves partly created by the unwillingness of
Israel to respect Palestinian rights under international law. A people cannot
be permanently repressed in by military force and administrative coercion ways
without viewing the structure that has emerged as an apartheid regime. Indeed,
part of the reason for not awaiting a more formal assessment of these charges
of apartheid is our sense of urgency in ending a set of arrangements that have
for so long been responsible for so much suffering and denial of basic rights,
above all the right of self-determination.
with our contention that Israel has become an apartheid state draws on the
reality that there is no peaceful resolution to the conflict on the diplomatic
horizon, and thus no foreseeable prospect for ending the discriminatory regime
and the attendant suffering of the Palestinian people. This quasi-permanent
structure of domination cannot be justified indefinitely by invoking Israeli
security needs, which are themselves partly created by the unwillingness of
Israel to respect Palestinian rights under international law. A people cannot
be permanently repressed in by military force and administrative coercion ways
without viewing the structure that has emerged as an apartheid regime. Indeed,
part of the reason for not awaiting a more formal assessment of these charges
of apartheid is our sense of urgency in ending a set of arrangements that have
for so long been responsible for so much suffering and denial of basic rights,
above all the right of self-determination.
It remains our central hope, one
shared with ESCWA, that the widespread availability of this report will lead to
a clearer understanding of the Palestinian plight and encourage more effective
responses by the UN, by governments, and by civil society. Beyond this, it is
our continuing wish that people of good will throughout the world, especially within
Israel, will work toward a political solution that will finally allow Jews and
Palestinians to live together in peace, with justice.
shared with ESCWA, that the widespread availability of this report will lead to
a clearer understanding of the Palestinian plight and encourage more effective
responses by the UN, by governments, and by civil society. Beyond this, it is
our continuing wish that people of good will throughout the world, especially within
Israel, will work toward a political solution that will finally allow Jews and
Palestinians to live together in peace, with justice.
