Sound but Insufficient: The Mainstream Discussion on the Question of the Applicability of Apartheid in the Occupied Palestinian Territory

[Ahmed Abofoul is a Legal Researcher and Advocacy Officer at Al-Haq’s International Legal Research and Advocacy Department.]

Introduction

2021 was an exceptionally difficult year for the Palestinians on both sides of the green line, where Israel’s oppressive practices intensified to unprecedented levels. It was the deadliest year for Palestinian children since 2014. Throughout 2021, Palestinians in the occupied Palestinian Territory (OPT) – the Gaza Strip (GS), West Bank (WB) including East Jerusalem (EJ) – the Palestinian citizens of Israel, Palestinian refugees in neighbouring countries, as well as people all over the world, demonstrated against Israel’s apartheid regime. In May, the provocative storming of Al-Aqsa Mosque by Israeli forces during the Holy month of Ramadan further escalated tensions. Subsequently, the Israeli military assault on the besieged GS had tragic consequences on civilians.

In November 2021, the United Nations (UN) Special Rapporteur on the situation of human rights in the OPT (SR) Prof. Michael Lynk, called for submissions on “whether Israel’s conduct of its occupation of the Palestinian territory is in breach of the prohibition against apartheid in international law”, which will be the focus of his thematic report to the UN Human Rights Council (HRC) at its March 2022 session. SR Lynk’s question provoked discussion among international law scholars and Civil Society Organisations (CSOs), many of which, including Al-Haq, replied with submissions.

As the title of this piece indicates, it does not, per se, disagree or intend to respond to any specific writing. In fact, this is due to the doctrinal nature of most of the literature on this question. Rather, this piece is a critical analysis of the mainstream (often liberal and progressive) discussions and writings on this question, which appear to be insufficient. Further, it addresses the gaps on some crucial aspects when addressing this topic; not only the detachment from the reality in the OPT and the complete disregard of the Palestinian perspective, but also the reluctance to consider the nature and objectives of the Israeli occupation. Consequently, it appears that the mainstream narrative discussing Israel’s apartheid is rather different from that of the Palestinians.

Context and Recent Development

2021 highlighted the growing global solidarity with the Palestinians and the recognition of Israel’s apartheid. Academics, artists and even former Israeli ambassadors to South Africa joined this call. Most importantly, several CSOs around the world joined Palestinian CSOs in recognising Israel’s apartheid regime imposed on the Palestinian people. For decades, Palestinian CSOs, such as Al-Haq, have called on CSOs and the international community at large to recognise such a fact. Throughout the year, several reports followed showing the escalation in domination and oppression imposed by Israel on the Palestinians, especially the use of mass surveillance compellingly compared to that used by China against the Uighurs. One can only expect similar reports to follow in 2022. Further, Israeli Pegasus Spyware has been used on Palestinian Human Rights Defenders, including Al-Haq staff, as well as six Palestinian CSOs designated “terrorist organisations” under flawed beyond repair domestic Counter-Terrorism Law. According to Prof. Dugard, Israel’s designations show that its apartheid regime is, in fact, worse than that of South Africa, which loathed the work of South African CSOs but did not dare to outlaw them. Notably, the Apartheid Convention includes the “Persecution of organizations and persons by depriving them of fundamental rights and freedoms, because they oppose apartheid,” as one of the inhuman acts of apartheid.

2021 has also seen unprecedented success for Palestine in its quest to seek justice using international mechanisms against Israel’s apartheid regime. The International Criminal Court (ICC) ruled that it has jurisdiction on the OPT in its entirety, and its then-Prosecutor announced the initiation of an ICC investigation. The Committee on the Elimination of All Forms of Racial Discrimination decided the inter-State communication brought by Palestine against Israel was admissible. Additionally, in the wake of the Israeli military assault on the GS, the HRC adopted Resolution S-30/1 which establishes an ongoing independent international commission of inquiry with the mandate to investigate, on both sides of the green line (in the OPT and Israel) all alleged violations and abuses of International Humanitarian Law (IHL) and International Human Rights Law (IHRL). It also has the mandate to investigate “all underlying root causes of recurrent tensions, instability and protraction of conflict, including systematic discrimination and repression based on national, ethnic, racial or religious identity.” With the aforementioned developments in mind, it was not surprising that Israeli officials recently expressed their concern that 2022 will be the year a UN body will label Israel’s regime an apartheid regime.

Notably, in 1975, the UN General Assembly Resolution 3379 determined that “Zionism is a form of racism and racial discrimination”. The resolution was revoked in 1991 after Israel conditioned its revocation upon their participation in the Madrid Peace Conference. Furthermore, in 2017, the UN Economic and Social Commission for Western Asia (ESCWA) issued a report concluding “on the basis of overwhelming evidence […] Israel is guilty of the crime of apartheid” and urged “swift action to oppose and end it.” Scandalously, the report was withdrawn due to US and Israeli pressure. As a result, the then-UN Under-Secretary General and Executive Secretary of ESCWA, resigned.

The Nature and Objectives of the Israeli Occupation

2022 marks 55 years of Israel’s belligerent occupation, which makes it the longest occupation in modern history. In his piece “Prolonged Occupation or Illegal Occupant?”, SR Lynk accurately asserts that “[w]hile prolonged occupation may be a useful descriptive term to capture the existence of a lengthy occupation, it is not appropriate as a distinct legal category within the laws of occupation in the absence of an analysis as to why the occupation has lasted so long and whether the Occupying Power is still administering the occupation in good faith and with a steady determination to hand the entire occupied territory back to the sovereign –the people– in as short and as reasonable a time period as possible.”

SR Lynk sets a four-part test regarding the legality of the Israeli occupation: (1) an Occupying Power cannot annex any parts of the occupied territory; (2) an occupation is inherently temporary and the Occupying Power must seek to end the occupation as soon as is reasonably possible; (3) during the occupation an Occupying Power must act in the best interests of the people under occupation; and (4) the Occupying Power must act in good faith. The Israeli occupation fails the four-part test: (1) Israel de jure annexed EJ and parts of the WB and has been de facto annexing more parts of the WB; (2) a 55-year occupation is not temporary, especially considering no other occupation in modern history, in compliance with IHL, has exceeded 10 years; (3) it is overwhelmingly documented that the Israeli occupation does not act in the best interests of the Palestinian protected population. The Palestinians have inferior civil, legal and social status and conditions compared to that of Israeli settlers; and (4) in short, Israel’s systematic violations of IHL and IHRL and its non-compliance with over 40 UN Security Council resolutions concerning its occupation, including its illegal settlements, is a clear indication of Israel’s bad faith as an Occupying Power.

In his 2007 Report, former SR Prof. Dugard pointed out that “Israel is clearly in military occupation of the OPT. At the same time, elements of the occupation constitute forms of colonialism and of apartheid, which are contrary to international law.” In his 2010 Report, former SR Prof. Falk stated that “the nature of the occupation as of 2010 substantiates earlier allegations of colonialism and apartheid in evidence and law to a greater extent than was the case [in 2007]. The entrenching of colonialist and apartheid features of the Israeli occupation has been a cumulative process.” Therefore, the settler-colonial nature of the Israeli occupation is beyond doubt. Since its occupation in 1967, Israel continues to expand its settlement enterprise aiming at altering the demographic composition of the occupied territory. For 55 years, the objective of the Israeli occupation has been the acquiring –de jure and de facto annexing– of more Palestinian land by force in violation of the UN Charter.

The paradox here is that while Palestinian CSOs and successive UN SRs on the situation in Palestine have been, for years, recognising the colonial aspect of Israel’s occupation and affirming the Palestinian people’s right to self-determination, there seems to be mainstream insistence to exclude this aspect. For example, most of the writings on the topic completely ignore the colonial aspect of Israel’s occupation and consequently the right of the Palestinian people’s right to self-determination. In the influential report by Human Rights Watch (HRW), the word “colonial” and its derivatives appeared only nine times in the 217-page report; eight of which are in footnotes and the ninth as part of a quotation from an Israeli official. The same goes for B’Tselem where the word “colonial” and its derivatives do not appear once in its position paper. As regards Amnesty International’s latest significant report, where the word “colonial” and its derivatives only appeared 5 times, all of which are in footnotes. 

Unfortunately, mainstream discussions persist to present Israel’s apartheid as a liberal question (i.e., a question of inequality) rather than one of settler-colonialism. In the author’s view, such an approach seems to be, whether intentionally or unintentionally, offering a solution that is merely aiming at bettering the situation rather than addressing its root causes (i.e., settler colonialism). As put by Qato and Rabie, a solution towards “a better colonialism rather than the end of colonialism”.

The Mainstream Myths Surrounding Israel’s Apartheid

In addition to excluding the colonial nature of Israel’s apartheid, certain myths are promoted that run contrary to the facts on the ground and the carved-in-stone legal principles. To start with, there is a bizarre claim that apartheid may only exist in the WB, or even only in “certain portions” of it. Whether intentionally or unintentionally, this lexicon downsizes Israeli apartheid as unique to the WB, and worse, minimises it to only “certain portions” of the WB. Such accounts exclude EJ completely which was illegally annexed by Israel – a move that was internationally denounced and never recognised. It further excludes Palestinian refugees, Israeli apartheid’s unseen dimension. It also excludes the GS and censures the perspective of two million Palestinians living there, which was asserted in Al-Mezan’s latest report on the Israeli apartheid: “The Gaza Bantustan.” Since the redeployment of its troops outside of the GS in 2005, Israel claimed that its responsibilities as an Occupying Power do not extend to it, despite international consensus that Israel remains an Occupying Power there. The mainstream promotion of such narrative aligns well with Israel’s propaganda. As ironically as it sounds, this appears to be the norm in promotion of the Israeli apartheid regime’s narrative, while at the same time addressing/studying (presumably fighting against) the very same apartheid regime.

In addition, there is a myth that the Israeli occupation turned into apartheid. The claim is that the Israeli occupation somehow recently evolved into apartheid. Phrases like “a threshold crossed”, “overtime”, “turned into”, or “has developed over years” indicate a specific moment in which the Israeli occupation became apartheid. Interestingly, no clarification is provided as to when or how this determination was made? In the author’s view, this is not surprising, simply because the Israeli occupation did not turn into apartheid, it started out as one. Israeli apartheid is not a new phenomenon, nor is it exclusive to the 1967 oPt. Rather, the Israeli apartheid is as old as the state itself. Since its inception, Israel’s settler-colonialism ideology and its apartheid-chartered parastatal organizations laid down the foundations for a system of racial discrimination and domination (Jewish supremacy) of the newly transferred Jewish colonisers over the indigenous Palestinian People, through a system of discriminatory laws, policies and practices which subsequently became Israel’s legal foundation. Israel is not a state of all its citizens, its 2018 “Jewish Nation-State Law” unequivocally affirmed this ever-intended racial superiority of the Jewish-Israelis over the indigenous Palestinians.

There is also this trend in mainstream academic writings, which Shehabi accurately describes as the offering of “a rigidly doctrinal solution to a problem resulting from a rigidly doctrinal interpretation of the concept of lex specialis”. Although, as accurately noted by Milanovic, “despite the Latin veneer of antiquity, and whatever its merits, the lex specialis principle was NOT part of mainstream thinking on the relationship between IHL and IHRL before the 1996 [Nuclear Weapons Advisory Opinion].” In this author’s view, the mainstream rigid application of the concept of lex specialis, especially in the context of the Israeli (prolonged) occupation, is in fact part of the problem. Such rigid application seems to permit Israel to continue instrumentalising the law of occupation framework to further strategically fragment Palestinians, entrench and maintain its apartheid regime. As an Occupying Power, Israel has been adopting a policy akin to that of pick-and-choose from the rules of the law of occupation. For instance, while it accepts the applicability of provisions that entail different treatment (which, in a way, rationalise and downsize its apartheid practices), it rejects the applicability of other provisions that do not serve its apartheid regime’s settler-colonial ambition in Palestine, e.g., provisions prohibiting transferring its own population to the territory it occupies, i.e., its colonial settlement activities and expansion in the OPT.

Conclusion

It is unfortunate to conclude that the mainstream discussion on the question of the applicability of the prohibition of apartheid in the OPT appears to completely ignore the settler-colonial nature and objectives of the Israeli prolonged occupation. It also appears to promote some myths that rationalise and downsize Israel’s apartheid. In general, the mainstream narrative appears to completely disregard the Palestinian perspective. Further, mainstream discussions appear willing to recognise any version of apartheid other than that of the Palestinians. For example, most writings on the topic refer to the recent HRW and B’Tselem (and now Amnesty) reports and completely ignore decades of reporting and advocacy by Palestinian organisations. As Hajjar notes, Palestinian organisations’ work, including that of Al-Haq, deserve “some of the credit for the fact that “Israeli apartheid” now slips easily off the tongue and has become a focus for new generations of activists in support of Palestinian rights.”

The mainstream ignorance of Palestinian narrative is not a new phenomenon, the Palestinians always felt they needed permission to narrate, simply because their narrative has always been different from that of the mainstream. The author recognises the indispensable role of colleagues all over the world in the fight against Israel’s apartheid regime, as public intellectuals whose role is to “speak truth to power”. As Palestinian-American literary theorist and public intellectual, Edward Said once wrote about the “Representations of the Intellectual”:

The central fact for me is, I think, that the intellectual is an individual endowed without a faculty for representing, embodying, articulating a message, a view, an attitude, philosophy or opinion to, as well as for, a public. And this role has an edge to it, and cannot be played without a sense of being someone whose place it is publicly to raise embarrassing questions, to confront orthodoxy and dogma (rather than to produce them), to be someone who cannot easily be co-opted by governments or corporations, and whose raison d’être is to represent all those people and issues that are routinely forgotten or swept under the rug. The intellectual does so on the basis of universal principles: that all human beings are entitled to expect decent standards of behavior concerning freedom and justice from worldly powers or nations, and that deliberate or inadvertent violations of these standards need to be testified and fought against courageously.