Israeli apartheid charge: A matter of law, antisemitism or occupation?

DIPLOMATIC AFFAIRS: Amnesty International published the third report lately accusing Israel of being an apartheid state.

 IDF SOLDIERS close a gate at the settlement of Shavei Shomron in the West Bank, near Nablus, last month.  (photo credit: NASSER ISHTAYEH/FLASH90)
IDF SOLDIERS close a gate at the settlement of Shavei Shomron in the West Bank, near Nablus, last month.
(photo credit: NASSER ISHTAYEH/FLASH90)

For South African Foreign Minister Naledi Pandor, the link between Israel and apartheid is so obvious that she is basing the country’s diplomatic policy on it.

In parliament this week, Pandor spoke of her acceptance of this branding. She used it as the basis of her call for further downgrading the country’s diplomatic relations with the Jewish state – despite the recent acceptance of the Israeli ambassador’s credentials.

“We withdrew our ambassador [from Israel] as part of this process of downgrading, and we are considering further measures to indicate our significant dismay at the continued apartheid practices of Israel against the long-suffering people of Palestine.

“We are studying the recent human rights reports on Israel, and hope to approach cabinet with a further proposed direct action against well-documented apartheid practices of Israel,” she said.

Pandor’s statement comes in the aftermath of three human rights reports which charged that Israel – in its control of the territory from the river to the sea, including the West Bank and Gaza – should be considered a regime that committed the crime of apartheid against the Palestinian people.

 The logo of Amnesty International is seen next to director of Mujeres En Linea Luisa Kislinger, during a news conference to announce the results of an investigation into humans rights abuses committed in Venezuela during protests against President Nicolas Maduro in Caracas, Venezuela February 20, 2 (credit: REUTERS/CARLOS JASSO) The logo of Amnesty International is seen next to director of Mujeres En Linea Luisa Kislinger, during a news conference to announce the results of an investigation into humans rights abuses committed in Venezuela during protests against President Nicolas Maduro in Caracas, Venezuela February 20, 2 (credit: REUTERS/CARLOS JASSO)

The latest report in February by Amnesty International alleged that Israel has been guilty of this crime since its inception in 1948, based on its independent legal analysis. Amnesty rejected charges that in so doing it was criminalizing Israel’s identity as an ethnic nationalist state.

The strong responses from countries like the United States and Germany denouncing an apartheid branding against Israel have not eased concerns in Israel or among the advocates of the Jewish state with regard to the dangers of a growing push by the Palestinian Authority and its supporters to find Israel guilty of apartheid, including through a new United Nations Human Right Council investigation and the International Criminal Court.

Among the bases for the charge is Article 7 of the Rome Statute, which states that apartheid is “inhuman 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.”

FOR DORE GOLD, ambassador to the United Nations from 1997 to 1999, the Amnesty report and others, such as the one done by Human Rights Watch, have little to do with matters of law and much more to do with antisemitism and the delegitimization of the State of Israel.

“What Amnesty has done is to advance their narrative about the Israeli-Palestinian conflict by using a loaded term like ‘apartheid’ and then insisting that it is a legal term,” said Gold, who is president of the Jerusalem Center for Public Affairs.

“I have been on the front lines of Israel’s defense at the UN, and I have seen that this issue of narrative repeats itself over and over,” he said.

“This method of slandering Israel by coating phony narratives with legality is something which Israel’s adversaries do all the time, and that is what seems to be the case here as well,” Gold said, adding that this “is a case of ‘fake law.’

“When South African justice Richard Goldstone asserts ‘in Israel, there is no apartheid,’ then, unfortunately, South Africa’s foreign minister is dealing with a narrative of her choice but not in real international law,” Gold said.

It is standard practice for antisemites to “seek accusations which they know will ignite hatred against the Jewish people,” he explained.

“Two thousand years ago those assertions were about the relationship of Judaism to Christianity. Today the most effective instrument in the hands of antisemites is to say that Israel is an apartheid regime,” he said.

He likened it to a modern-day blood libel, akin to the baseless stories that began in the Middle Ages of Jews using the blood of Christian boys for ritual purposes.

The narrative relies on a false claim that Israel, from the start, intended to continuously oppress the Palestinian people, Gold said. In reality, he said, Israel has worked from the start to make peace with the Palestinians.

Under Article 7, Gold said, “it has to be with the intention of ‘permanently maintaining the regime in the area in question.’”

But Israel negotiated with the PLO for the creation of the Palestinian Authority as a self-governing body over territory in the West Bank, effectively not disempowering the Palestinians, Gold said.

“It may not be ideal,” but the arrangement is not one of “an apartheid regime” and “most of all, it is not a permanent arrangement,” Gold explained.

“Israeli governments have been trying to negotiate with legitimate representatives the Palestinians for a way out,” Gold recalled, noting that he has personally been involved in such talks for many years.

He recalled that during the last round of negotiations in 2014, the Obama administration team, led by former US secretary of state John Kerry, sought Israeli-Palestinian acceptance of a plan. Former prime minister Benjamin Netanyahu accepted with reservations, while PA President Mahmoud Abbas told the US he would respond but never did.

The only reason the PA lacks additional autonomy is because of the hard line taken by Abbas and his supporters,” Gold said.

In order to combat the apartheid battle, Israel has to advance its own narrative and increase its international diplomatic support, particularly among African and Arab nations, Gold said.

“The UN does not operate on the basis of legal scholarship, but on the basis of political muscle. If Israel’s enemies can recruit a sufficient number of states, they can produce a majority, against Israel’s interests,” Gold said.

That is why Israel has to make its case among key players in the UN system, he added.

“Our narrative starts with the fact that human rights bodies like Amnesty, as well as the UNHRC, ignore the most serious cases of human rights violations across the globe while focusing on Israel,” Gold said.

The UN has accused Israel of violating the Fourth Geneva Convention by building in the West Bank, Gold said, referring to territory that the UN considers to be under Israeli occupation. But it has ignored Iranian actions in Syria to replace Sunni Muslims with Shi’ites.

“Tens of thousands of Syrian Sunnis have been evicted from their homes by Shi’ite militias supported by Tehran,” Gold said. In exchange, thousands of Shi’ites have been resettled in Syria from Iraq, Afghanistan and Pakistan “in order to alter the demography of that country,” Gold said.

This, he charged, is a clear violation of the Geneva convention “of an invading army, while accusing” Israel of that same violation.”

Gold is among many pro-Israel advocates who have spoken up in the last months. They have been joined by voices on the Left, including high-profile Israeli-Arabs, such as Ra’am Party Leader and MK Mansour Abbas and Regional Cooperation Minister Esawi Frej.

LAST WEEK, former acting Supreme Court judge and attorney-general Michael Ben-Yair published an opinion piece in TheJournal.ie, in which he stated: “It is with great sadness that I must also conclude that my country has sunk to such political and moral depths that it is now an apartheid regime.

“You simply cannot be a liberal democracy if you operate apartheid over another people. It is a contradiction in terms because Israel’s entire society is complicit in this unjust reality,” Ben-Yair continued in his piece.

At issue for him is the absence of any peace process and a political horizon for that to occur.

He told The Jerusalem Post that in the last years “it has become absolutely clear that we seek one state and not two.”

The government over the last 15 years has advanced a one-state agenda, Ben-Yair said, adding that this creates a two-tiered system.

There cannot be “one regime on one side of the Green Line and another regime on the other,” he said.

“If there was a situation where the government supported two states, then my opinion would be different,” he said.

If there is one state, then there are two systems and the superiority of one nation over another, with two legal systems, and that is apartheid, Ben-Yair explained.

LEGAL SCHOLAR Prof. Yuval Shany of the Israel Democracy Institute and the Hebrew University of Jerusalem dismissed the blanket application of the crime of apartheid to Israel, including any comparison to South Africa under such a system.

Israel does not meet the legal definition of that crime as set out in Article 7 and the International Convention on the Suppression and Punishment of the Crime of Apartheid.

Comparisons to South Africa are not relevant, he said, because the legal definitions of apartheid do not limit themselves to the same “practices of racial domination” found in South Africa prior to 1994.

The apartheid precedent was very dominant in the formulation of the norm, but it is not an element of the crime itself,” Shany said.

There are three elements that have to be present: crimes of serious gravity; racial discrimination; and the intention to maintain that racial domination, Shany said.

“We are talking about very serious crimes of oppression or persecution,” Shany explained.

There has to be a “master plan” in order to preserve a racially-based hierarchy, he added.

Those like Amnesty who want to claim that Israeli apartheid dates back to 1948 and involves all the territory from the Jordan River to the Mediterranean Sea have oversimplified the issue and missed their mark, Shany said.

The misapplication of an apartheid charge in inapplicable situations robs the word of its meaning and in a way neutralizes it, he said.

“When you are loosely using a very explosive and very serious definition with very serious legal implications, distinctions between very bad situations and the worst of the worst situations disappear,” Shany said.

“Not every act of systemic discrimination is apartheid,” he added.

The idea of an Israeli “master plan” that explains everything that happened from 1948 onward is quite unconvincing, Shany said. This is particularly true given that there have been different governments and decision-makers with varying policies over the years, he said.

“There is discrimination against Arabs in Israel, but I don’t think it reaches the level of crimes against humanity. You have to really stretch the definitions in a very unreasonable way to actually designate what happens within Israel as a crime against humanity, against the Arab population,” Shany said, particularly given that there have been over the years “significant governmental plans and efforts for integration and empowerment.”

He clarified that he takes the issue of discrimination and the need to eliminate it very seriously, but that didn’t mean it had reached the level of apartheid.

“When you are talking about an apartheid program, you have to show that in all facets of life, in all interactions, the specific intent of maintaining racial domination is the dominant explanation for all or almost all acts of discrimination,” Shany said.

Also, the issue differs within and without sovereign Israel, he said. When it comes to Gaza, which Israel withdrew from in 2005 and which is now under forced Hamas rule, the dominant issue there is security, not discrimination, he explained.

“Israel has clearly expressed that it has no claims to Gaza,” he said. The situation there is more akin to “a state of war between two national entities,” he added.

The situation there “is very complex. The attempt to put it within a human rights criminal law framework of racial discrimination is misguided,” he added.

If Israel were to be vulnerable to an apartheid charge, it would be in the West Bank, where there are discriminatory practices with regard to land and resources, and where there are two populations living under two different legal systems, Shany said.

Even there, he said, despite the “serious violations of international law,” the apartheid charge is “difficult to sustain given the existence of other motivations relating to national security and the political conflict over territory.”

OMAR SHAKIR, who authored a report for Human Rights Watch alleging that Israeli authorities were guilty of the crime of apartheid, said that he does not see any ambiguity in the matter. For apartheid to be applicable, he said, there had to be a systematic intent to dominate, which can be present despite the possibility that it changes in the future.

There is a consistency to Israel’s policies on both sides of the Green Line, he said, particularly when it comes to issues of land and demographics. In the West Bank and Gaza, he said, there are sweeping restrictions on issues of movement and travel, felt most acutely in Gaza, where over two million Palestinians live.

Israelis, in contrast, have unfettered movement wherever they live, said Shakir, who has a law degree from Stanford University. He is the Israel and Palestine director for Human Rights Watch.

"Within Israel, there are also land and citizenship inequity laws, including a ban on family reunification applicable only to Palestinian spouses from the occupied territory," he said.

There is overwhelming evidence, including statements from Israeli public officials, with regard to the intent to dominate, Shakir said.

“What is relevant for the legal analysis of apartheid is not the formal legal distinction between Israel and the occupied territory," he explained. What is relevant here is that there is one government and two people of about equal size, one methodologically privileged and the other systematically repressed, Shakir added.