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Is Isarael guilty of the crime of apartheid?

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By Richard Falk

(source: Al Jazeera)

It is my belief that the recent finding of the Russell Tribunal on Palestine (RToP) that the state of Israel is guilty of the crime of apartheid in relation to the Palestine people should be taken with the utmost seriousness by all those who affirm human solidarity and care about making visible the long ordeal of a suffering and vulnerable people. The finding is conspicuously ignored by Israel and the United States, as well as by most media and by the United Nations. Such neglect is partly a result of Israel’s geopolitical weight and partly the widely shared opinion that if a decision on law and rights is rendered by a procedure that is not constituted by governments or international institutions, it deserves no respect even if it is the most reliable available means to tell the world about some “inconvenient truths”.

I firmly believe that the Russell Tribunal has credibility as a venue for truth-telling despite being established and funded by ordinary citizens concerned about the denial of Palestinian rights and Israeli defiance of international law. RToP makes no pretense of being “a court” with enforcement powers, but it does deny allegations of “cooking the books” because it knows in advance that there will be a finding of guilt. Indeed it is this knowledge in advance, based on abundant and non-contested evidence, that explains the motivations for mounting the extraordinary effort to raise the funds and handle the logistics required to organise a proceeding of this type. Such a tribunal makes no real effort made to discover the truth, although representatives of those accused were formally invited to present their defence, but rather its calling is to document the truth. Israel has made no secret of the policies, laws and practices that were presented in Cape Town, although it describes them differently, hides and obscures their application, and draws a different set of conclusions.

Russell’s historic initiative

It was the celebrated British philosopher, Bertrand Russell who suggests in his autobiography that he felt that the world needed to know about the Vietnam War in a manner free from self-serving slant and Cold War propaganda, and so he invited leading moral authority figures in the world to take part in an unrestricted inquiry into the alleged criminality associated with the American role in Vietnam.

In Russell’s opening statement at the International War Crimes Tribunal convened in 1966 to investigate the atrocities by the US in Vietnam, he declared that the initiative had no clear precedent but that such openness was helpful as it allowed the tribunal “to conduct a solemn and historic investigation, uncompelled by reasons of State or other such obligations”. He ended his remarks by making clear the distinctive objective of the undertaking: “May this Tribunal prevent the crime of silence”.

In effect, the narration of the criminality is undertaken not primarily to speak truth to power, which is generally deaf to voices from below, but to speak truth to people, awakening public opinion from its apathy to the responsibilities of being human (concern for the victimised other) and duties as citizens of free society to ensure that a government acting in its name upholds the law. Russell expressed this orientation as embodying very grand, some would say grandiose, expectations: “our task is to make mankind bear witness to these crimes and to unite humanity on the side of justice in Vietnam”.

Actually, the outcome of the Russell Tribunal was virtually unreported at the time (except derisively), and later its work was known only to small coteries of anti-war activists and intellectuals, and even they were often confused at the time about whether such a one-sided unauthorised event was helpful to the general cause of peace and justicein the world. With the passage of time, the Russell experience has gained in influence and reputation, but it remains a large exaggeration to claim, as Marvyn Bennum does in an otherwise excellent article, “Understanding the rational, logic and procedures of the Russell Tribunal”, [Cape Argus, October 31, 2011] that the Russell tribunals had”a profound impact on world opinion”, although this historic initiativedid set the standard in most respects for subsequent enactments of suchan approach, including the RToP.

Unfortunately, although Russell’s words are often invoked as the core justifying claim, the reality after some 45 years is that such undertakings, and there have been many since this first one, are rendered almost mute by a media that thinks and feels like a state, which is especially so when the allegations are directed at the lead constitutional democracy that sits firmly at the pinnacle of geopolitical power and influence. The wall of silence does not crumble easily if sustained by the combined corporate and military muscle at thedisposal of Washington.

As Russell said in 1967 at the second session of the Vietnam Tribunal, “[w]e are not judges. We are witnesses”. This witnessing is meant to be politically effective than mere pronouncements of injustice and criminality, and it has gradually in recent years become more so. As thestate system has moved to criminalise certain forms of conduct, and even to establish an International Criminal Court, it seems more plausible to demand that the law should be applied to the strong as wellas the weak, and less of a usurpation of governmental functions for persons acting on their own to do what institutions of the state are failing to do, that is, assess charges of guilt.

It may seem to be the case that the Vietnam War Crimes Tribunal gave thegame away at the outset by putting the words “investigate the atrocities by the United States in Vietnam”. Such provocative language makes us think about the nature of the game, and how it should be played. To deal with the impunity of the powerful in abusing the weak, the supposed uncertainty of outcome in a governmental trial (where some version of the myth of “innocent until proven guilty beyond a reasonabledoubt” is in force) is not present in this kind of setting. The very premise of the Russell Tribunal, and the many subsequent replicas, is that there is such certainty present as to generate moral outrage sufficient to give rise to the inquiry.

Frank Barat, the main organiser of RToP put the issue slightly differently, by observing “[o]ur intention has never been to find out ifIsrael were guilty or not, nor to start a debate about it. This work has already been done by UN bodies, human rights organisations, aid organisations and countless violated UN Security Council resolutions”. And further, “[i]t is our duty to stand with the oppressed in its quest for justice”.

In this respect, those civil society tribunals that try to imitate to the extent a judicial model of inquiry and decision risk generating confusion. They make it more reasonable for critics to point out that ifthe tribunal purports to be trying to ascertain guilt rather than denounce it on the basis of a preexisting legal consensus, then a pretense of “judicial process” does make itself subject to criticism as ahypocritical fraud. To some extent, the recently concluded Kuala LumpurWar Crimes Tribunal, while impressive in many respects, fell into this trap by emphasising the legal credentials of its “judges” who were almost all exclusively jurists who were only locally known and by putting forward a kind of token defence on behalf of Bush and Blair who were charged with crimes in connection with the Iraq War. The Russell Vietnam Tribunal, in contrast, had clearly signalled its rejection of this vocational law model by using such a loaded word as “atrocities” innaming itself, by not seeking to appoint individuals with a law background to serve on its panel of judges, and by not mounting any defence on behalf of those accused (although a ritualised invitation wasissued to the American president, Lyndon B Johnson, to do so).

Obviously, this issue raises a question for the future. Is it better to mimic the state-centric model of judicial process in a criminal case to the extent possible or is it preferable to produce a morality pageant inwhich a true story is told with as much passion, reasoning, and proof as possible? Of course, international law can be invoked in the pageant model as explained by Barat when he writes that the RToP “by using international law as its basis, proposes a no-nonsense way forward. The law is on the side of the Palestinians, so let’s make good use of it. The Tribunal intends to assist the people working on a just peace for all with the legal means they have crucially been lacking for too long”.[Frank Barat, “What is the point of the Russell Tribunal on Palestine?”] The pro-Palestinian claim here seems to correspond with a fair reading of relevant international law on all crucial dividing issues: settlements, Jerusalem, refugees, occupation, land, water, and the utmost issue, self-determination. So stacked it reinforces the moralcondemnation.

Goldstone’s charm

Realising that the objective is to overcome “silence”, the RToP was greatly helped by the publication of a slanderous attack on the prospective undertaking in the pages of the New York Times by the notable South African public figure Richard Goldstone. [Goldstone, “Israel and the Apartheid Slander”, NY Times, October 31, 2011] Never before in the more than four decades of such proceedings had an influential media venue in the West stooped to take notice of such happenings prior to their occurrence. Not only did Goldstone call globalattention to RToP, but he created a platform for response that was usedby John Dugard, another South African of global stature with special expert credentials as to conditions in Palestine as well as to the experience of apartheid in South Africa. The Goldstone attack suggests that it sometimes better to have enemies than friends!

In the article almost ludicrously Goldstone wrote, “In Israel, there is no apartheid. Nothing there comes close to the definition of apartheid under the 1998 Rome Statute. ‘Inhumane acts… committed in the context of an institutionalised regime of systematic oppression and discrimination’…” Really! The list of discriminatory laws, the dual administration of settlements and Palestinians, the checkpoint treatmentof Palestinians, the settler only roads, the non-protection of Palestinians living under occupation, the midnight abusive arrests of children certainly suggest a pattern of inhuman acts even to an uninformed mind!

Without naming the participants, among whom were a death camp survivor, Stephane Hessel, a former member of Mandela’s cabinet – Ronnie Kasrils, aworld renowned author – Alice Walker, a distinguished English barrister- Michael Mansfield, QC, and a former American congresswoman – Cynthia McKinney, Goldstone calls them “critics whose harsh views of Israel are well known”. The question, of course, is not whether these outstanding personalities have strong opinions on the matter at issue, but whether they have credibility based on their reputation for bearing witness truthfully and effectively. [For insightful interviews by Hanan Chehata with these leading RToP participants see the Middle East Monitor website].

RToP in South Africa

The RToP chose South Africa as the site for this session on apartheid quite obviously to claim continuity with the universally condemned racist regime that governed the country until 1994. This continuity was reinforced by having Archbishop Emeritus Desmond Tutu, renowned opponentof apartheid in South Africa and someone who early drew the analogy to Israeli treatment of Palestinians, deliver an opening address at the session in Cape Town.

This lineage was further reinforced by the presence of Ronnie Kastrils, aJewish member of the RToP panel, as well as receiving testimony from the world respected South African jurist, John Dugard, who was prominentboth for his opposition at home to apartheid and because in his role asUN HRC Special Rapporteur for Occupied Palestine he called the occupation as an instance of the international crime of apartheid.

But there was also some cost paid for emphasising this link to South Africa, which was the only real basis for Goldstone’s rant directed at RToP. Goldstone called the comparison “an unfair and inaccurate slander against Israel, calculated to retard rather than advance peace negotiations”. In effect, it allows the misleading argument to be made that since there are significant dissimilarities between Israeli treatment of the Palestinians and the South African racist regime the allegation would seem to rest on the credibility of the comparison.

As should be understood by people of good will by now, the apartheid experience in South Africa gave rise to the formulation of an international crime of apartheid as specified in the 1973 International Convention and included in the 2002 Rome Treaty establishing the International Criminal Court, but it does not delimit future occurrencesof the crime of apartheid. In this latter legal instrument, apartheid is set forth as one of eleven types of “crimes against humanity” in Article 7(1)(j) of the treaty.

The crime of apartheid

The most controversial, and at the same time far reaching feature, of the RToP finding was to conclude that Israeli responsibility for establishing an apartheid regime applied not only to Palestinians livingunder occupation, but also to the Palestinians minority living with discriminatory regulations in Israel and to the Palestinian diaspora consisting of 4-5 million refugees and exiles.

Seen in isolation, it seems like an unconvincing extension of the meaning of apartheid, even if separated from its South African connection, to consider Palestinian citizens of Israel, even if victims of severe and humbling discrimination, as living under an apartheid regime or even more so to view diaspora Palestinians in this manner. Butthere is moral and psycho-political weight to the unanimous view of theRToP jurors that the core right of self-determination applies to the Palestinian people as a whole, including not living under direct Israelimilitary control.

The RToP divides its rationale for finding guilty of committing the crime of apartheid into three main parts: (1) race as defining identity in Israel/Palestine relations (tribunal agrees that race in the international definition of the crime should be interpreted broadly to include ethnic and national character); (2) inhuman acts (specified in relation to Israeli treatment of Palestinians, as integral to the crime,particularly “colonisation and appropriation of Palestinian land” and coercive fragmentation of the Palestinian community in “different physical spaces”; (3) a systematic and institutionalised regime as pervading the subjugation of the Palestinian people (preferential treatment of Jews, dual legal arrangements, restrictions on residence and mobility, deportations and house demolitions are elements in what the tribunal calls “Israel’s institutionalised regime of domination”. [See Victor Kattan’s excellent detailed analysis of the RToP finding ofapartheid in his “The Russell Tribunal on Palestine and the Question ofApartheid”, al-shabaka brief, November 23, 2011].

Assessing RToP

The importance of the RToP session is to strengthen the civil society case against the Israeli treatment of the Palestinian people. As such, it adds a certain quality of gravitas to such international initiatives as the Freedom Flotilla and the BDS (boycott, divestment and sanctions) campaign. Thanks to Goldstone, and to the organisational skills of the tribunal, there has also been a certain media visibility for RToP that has been absent in most comparable undertakings, including the recent Kuala Lumpur proceedings against George W. Bush and Tony Blair. In this sense, the crime of silence that disturbed Bertrand Russell during the Vietnam War is still being committed, but it has been to a degree mitigated by the legacy he continues to inspire.

Indirectly, also, the very existence of RToP should encourage states to be more active in exerting their own authority to implement individual accountability under international criminal law via reliance on universal jurisdiction. At present, the impulse to reassert such national agency to supplement weak international enforcement mechanisms has been set back by a geopolitical backlash led by the US in the aftermath of the Spanish indictment and British detention of Augusto Pinochet a little more than a decade ago. This struggle between the vitalisation of international criminal law and geopolitical actors demanding impunity will help determine whether global governance is primarily a regime of power or a regime of just law.

Finally, we notice that the jurisprudence of conscience, that is, applications of law without punitive capacity in relation to alleged violators, is maturing in two parallel directions. The first illustratedby the Russell legacy, including at this recently concluded inquiry into Israeli apartheid, rests its methodology on law established by testimony of legal experts and findings of individuals whose credibilitydepends primarily on their moral authority and cultural stature, a juryof conscience. The second illustrated to a degree by the Kuala Lumpur proceedings, seeking to replicate the behaviour of courts under the informal auspices of civil society, and seeks to base its credibility ona pervasive legal framework, including the makeup of the panel making findings and recommendations and extending to providing a defence on behalf of the government and individuals charged with criminal behavior.Hopefully, the fourth and final session of RToP, to be held in 2012 in the US, will in addition to providing an overview of the allegations against Israel, will also offer guidance to those who see a continuing need for a jurisprudence of conscience as a critical arena of struggle in the ongoing quest for humane global governance.

Richard Falk is Albert G. Milbank Professor Emeritus of InternationalLaw at Princeton University and Visiting Distinguished Professor in Global and International Studies at the University of California, Santa Barbara. He has authored and edited numerous publications spanning a period of five decades, most recently editing the volume, International Law and the Third World: Reshaping Justice (Routledge, 2008). He is currently serving his third year of a six year term as a United Nations Special Rapporteur on Palestinian human rights.