Richard Falk, 1 August 2021
Hvem er Richard Falk?
- Richard Falk var i seks år FNs spesialutsending til de palestinske områder okkupert siden 1967 under Menneskerettsrådet.
- Richard Falk er professor Emeritus i internasjonal lov ved Princeton Universitet.
- Han har skrevet mer enn tyve bøker.
- Richard Falk har jødisk bakgrunn.
Racism as Inherent; Apartheid as Expedient
From its inception in the 19th century the Zionist Project was racist at its core privileging the Jewish people in its vision of a sanctuary that would result in Jewish homeland to be safeguarded by a Jewish state. This racist dimension became manifest as soon as Zionist energies focused on Palestine, the biblical national home of the Jewish people. Even at the time of the Balfour Declaration pledging the British support for the establishment of a Jewish homeland in Israel the project ran up against a strong demographic barrier in view of the reality that the Jewish population of Palestine in 1917 is estimated to have been under 10%. In the ensuing period the Zionist Project focused on encouraging Jewish immigration to Palestine with the undisguised goal of changing the demographic balance, which at first encountered little opposition from the non-Jewish resident majority, but gradually over time as Zionist hegemonic goals became more transparent, during the period of the British Mandate, the resentment and resistance of the residential population increased, climaxing in the Arab Revolt of 1936-39, which was aimed at the British as much as at Zionism.
Eventually, both Arabs and Jews turned against the British Mandate, making its administration costly to maintain. The Arabs were motivated by anti-colonial nationalism against both the British presence, especially its tolerance of Zionist demographic engineering, and against the Zionist Project. Jews in Palestine were also motivated in their way by anti-colonial nationalism but of an ethnically exclusivist character, which is what brought the racist element to the fore. This anti-British Zionist sentiment produced terrorist responses when London belatedly sought to manage the growing tension in Palestine by clamping down of Jewish immigration by imposing annual limits. As both peoples wanted the British out, persisting in its mandatory role after having been weakened as a global power by World War II, the UK turned to the UN to find a solution having recommended previously recommended their preferred outcome of partition, but concerned that it might not work given the overlapping claims of antagonistic nationalisms.
The UN proceeded to form a commission of high-profile individuals who came up with their own recommendations of partition, with Jerusalem set apart as a special internationalized regime. These recommendations were approved in UNGA 181, A/RES/ 181, 29 Nov 1947 by a vote of 33-13, with 10 abstentions. It should be noted that the UN proposals violated the principle of self-determination by endorsing partition without consulting the resident population by referendum or through consultation with Palestinian community leaders, even granting the absence of a formal structure of indigenous Palestinian governance during the mandate period. Furthermore, no concerted UN subsequent effort was made to secure Israel’s compliance with international law in response to Palestinian grievances was made aside from resolutions and the rhetoric of diplomats at annual presentations by Member governments at the opening sessions of the General Assembly that was defiantly ignored by the Israeli government. The frustrations of those supportive of Palestinian rights were intensified by geopolitical nullification taking the form of unconditional U.S. shielding of Israel from all efforts by the UN to hold Israel accountable for violations of international criminal law, including those seeking to the elimination of racial discrimination in all its forms such as the denial of a right of return imposed on Palestinian refugees. See GA Res. 194, A/RES/194, 11 Dec 1948 adopted by a vote of 35-15 with 8 abstentions.
The separate areas in Palestine earmarked for the two peoples left a majority Arab population in the proposed Jewish state, making the 1948 War not only against the invading Arab armies but also the occasion for a forcible redressing this demographic challenge to the Zionist vision of Israel. To sustain this hierarchal structure in Israel would require reliance on many racist instruments of control, discrimination, and exclusion over the decades.
The 1917 text of the Balfour Declaration also contained language to the effect that the pledged support of the World Zionist Movement would not be fulfilled at the expense of non-Jewish population groups living in Palestine, but this provision seemed to have had no operative effect on British administration of the Mandate, nor on the subsequent UN role. British motives were always mixed. Their behavior could be regarded as falling into a classical pattern of imperial self-interest in establishing a strong military presence in Palestine that could provide security for its vital trade routes to Asia, above all India, which elevated the protection of the overland routes and the Suez Canal to a high status of strategic interest. The steady influx of Jews to Palestine was for some years consistent with Britain’s worldwide preferred policy of divide and rule by which it sought to divert attention of native populations from the injustices of colonial role by agitating intra-state ethnic conflict. It is also apparent that even in 1917, European anti-Semitism seemed comfortable with the prospect of a Jewish homeland outside of Europe, which incidentally would mean less Jews in Europe. This contextual element became much stronger with the rise of Naziism, and the acute European persecution of Jews culminating in the Holocaust. The humanitarian tragedy befalling the Jewish people overshadowed all other considerations when it came to the early Western responses to moves to establish Israel as Jewish state.
Liberal democracies in Europe and North America, confronted by the Great Depression and then World War II, were aware that their governments, by and large, had done very little by way of according emergency humanitarian relief to the desperation of Jews during the 1930s, generally denying or severely limiting the admission of Jewish refugees to their countries. Even less was done by these liberal government to interfere with the overtly racist policies and practices of Hitler’s Germany and other fascist and anti-Semitic governments and movements active in Europe. Against this background, with an Orientalist mentality influencing the principal Zionist and general European perceptions of the Arab population of Palestine, the path was cleared of obstacles to the creation of a Jewish state in Palestine. In view of this, it is hardly surprising that the displacement and dispossession of a large number of Arab inhabitants of Palestine in ‘the fog of war’ was hardly noticed at the international level in 1948, much less lamented, outside of the Middle East. Despite the racist character of this expulsion, as exhibited not only by forcing many non-Jewish Palestinians to flee their homeland, but supplemented in a racist manner by permanently denying Palestinians any right of a postwar return to their homes and homeland.
Such racist policies and practices were complicated and to some extent obscured by being coupled with the foundational commitment of the Zionist movement to establish a functioning democracy in their new state, including an affirmation of the human dignity of all persons to be upheld by international law human rights standards. This combination of requirements—Jewish dominance but implemented by laws and procedures that extended the rights of citizenship to all inhabitants, including non-Jews, territorially present within the new Jewish state—obscured the racist character resulting from imposing Jewish supremacy in a predominantly non-Jewish society. Pressures to square this circle explains the overtly racist orientation of Zionism at the time Israel was established. It explains both the ethnic cleansing of as many as 700,000 non-Jewish residents of what became Israel and it justified in most Zionist eyes, the denial of repatriation and immigration rights for non-Jews. The security and indeed the continuing security of the Zionist Project depended on maintaining a substantial Jewish majority through time in Israel. These features of the evolving Israeli state deeply embedded racism in the process of state-building, accentuated by the security challenges resulting from the refusal of the Arab neighbors of Israel to accept the legitimacy of the Israeli state viewing it as having been imposed by Euro-American colonial forces, an encroachment on and threat to the autonomy of the entire region.
A further relevant consideration was the historical context. As Zionism was pushing Palestinians out of their own homeland to satisfy the political aspirations of a settler colonial undertaking, European colonialism was collapsing around the world, including in the Middle East. And so, at the very moment when the right of every people to territorial self-determination was being proclaimed as the legitimate foundation of statehood, it was being denied to the Palestinian people, ironically with the ambiguous blessings of the United Nations via their proffered solution of partition. This paradoxical reality had some ironic side-effects, the most obvious of which was that it generated a feeling of legal, moral, and political entitlement on the part of the Palestinians, and throughout the Arab world and with sympathetic resonances among all non-Western peoples who had experience colonial rule. It also tainted the UN with a role in legitimating Israel, not only in defiance of Palestinian rights of self-determination and over the objection of a growing majority of UN members. The inability of this majority to uphold Palestinian rights was somewhat disguised by General Assembly resolutions supportive of Palestinian claims, but unenforceable, which was bad for the new organization, making the UN seem more ‘a talk shop’ than a political actor with the capacity and will to uphold international law as embodied in its own Charter.
These global attitudes of opposition to the Zionist Project should not be considered expressions of anti-Semitism, but reflecting the overriding belief throughout the non-West that the unjust suffering of Jews in Europe should not serve as an acceptable pretext for reproduced such evils by imposing racist policies on another people, who were in no way responsible for the events culminating in the Holocaust. Anti-colonialism fueled Palestinian resistance and this in turn induced security obsessions in Israel, whose leaders dedicated great energy and ingenuity to a demonstration that the Israel government could reliably safeguard the Zionist Project from both external adversaries and internal resistance, as well as any combination of the two. Israeli apartheid arose, at least in part, as the almost inevitable response to these concerns, reinforced by an ongoing expansionist Zionist policy agenda, which has been revealed to the growing critical gaze of once unified public support in the liberal democracies, which had long affirmed the realization of the Zionist Project in Israel despite its rights-denying character.
In the period of Israel’s existence, the struggle against racism became encoded in authoritative instruments of international law, which expressed the priority accorded to this dimension of the human rights agenda by the non-Western world. This anti-racist attitude displayed its strength by promoting a global anti-apartheid campaign directed against the racist regimes that governed in South Africa and South West Africa (now Namibia). The campaign was given added legal authority by the persuasive reasoning of several Advisory Opinions of the International Court of Justice and a stream of resolutions in the General Assembly. The most important legal milestone was reached in 1963 by the successful negotiation of the International Convention on the Elimination of all Forms of Racial Discrimination, which was treated as a lawmaking treaty establishing universal norms that did not depend for its applicability upon normal treaty processes of ratification.
The UNGA singled Israel out for condemnation in the controversial resolution declaring Zionism as a form of racism (A/RES/3379, adopted 10 Nov 1975 by a vote of 72 to 35, with 32 abstentions. In succeeding years this resolution was used by governmental and NGO supporters of Israel to engage in UN-bashing, which was effective enough to having the resolution finally revoked, but significantly with a word of explanation. This left an impression that it was immense pressure rather than behavioral modification on Israel’s part that accounted for the about face by GA as formalized by Res. 46/96 in 1991.
The reach and comprehension of racism, as well as the action needed to combat it were comprehensively and authoritatively formulated in 2001 by the Durban Declaration of World Conference Against Racism, Racial Discrimination, Xenophobia, and Related Intolerance. The Declaration was to be implemented by an accompanying Program of Action, and periodic meetings, including Durban IV in 2021. The Durban process, symbolically situated in post-apartheid South Africa, and featuring the wrongs of slavery victimizing the African continent, has been viciously attacked and even boycotted by more than 10 states claiming its anti-Semitic character. True, many of the statements in the open debate singled out Israel, as did the parallel non-governmental forum, but the Durban Declaration condemned the Holocaust and anti-Semitism, and only called attention to the ‘plight of the Palestinian people.’ It even included an affirmation of a “..right of security for all states in the region, including Israel,” undercutting any responsible claim of anti-Semitism, and yet the denunciations continued in efforts to discredit the Durban process, which is holding its Fourth Meeting in 2021.
It is fair to ask whether there was a non-racist road not taken by the dominant strands of the Zionist Project. Was it possible to share the land as envisioned by the UN in its recommendation of partition after the end of the British Mandate? Would Palestinians, as properly represented, have accepted such an outcome? Would the Zionist Movement have relinquished its guiding dream of recovering the whole of ‘the promised land’? Could the two peoples have lived together in a bi-national state based on racial equality, and would not such a political solution have required the substantial abandonment of Zionism as a political organizing ideology? It is not very productive to dwell on such historical counter-factuals beyond taking note of how difficult to implement these non-racist alternatives now seem.
Israeli Apartheid: A Continuing Crime Against Humanity
The language of apartheid was used by the South African government in the 1960s to explain their policies and practices of racial segregation. The Afrikaner leadership denied its racist character, despite its gross discriminatory and repressive features, claiming that ‘separate development’ was beneficial for all races. Yet the approach was widely challenged from the perspective of human rights and international law, and eventuated in a global campaign that combined intergovernmental sanctions and civil society BDS initiatives that excluded South African participation in many global sporting events and led leading entertainers to refuse invitations to perform in South Africa.
Because the white population of South Africa was never more than 25% the option of multi-racial democracy and citizenship were never seriously considered, besides being opposed to the idea of rigid separation of races. The apartheid structure was rigidly enforced by a series of repressive laws and regulations: widespread criminalization resulting from the African pass laws, denial of access to white areas, discriminatory employment and property laws, separate and unequal facilities for black, colored, and white persons, and a variety of laws criminalizing opposition to apartheid as subversion or treason. To soften international criticism the South African government established a series of bantustans that pretended to provide tribal sovereignty to distinct African ethnicities, but never achieved international legitimacy or existential independence in relation to the Pretoria government.
The experience of racial discrimination and hierarchy led to the criminalization of apartheid by way of an international treaty. Although the word apartheid and the South African experience was instrumental in the formulation of the crime, the elements of the crime as it evolved were generalized as pertaining to policies and practices of racism with the overwhelming goal of maintaining supremacy of one race by subjugating another race. This led to the negotiation of the International Convention on the Suppression and Punishment of the Crime of Apartheid (1973). Article II has supplied the definition of the crime of apartheid most widely relied upon: “The term ‘crime of apartheid’ which shall include similar policies and practices of racial segregation and discrimination as practiced in southern Africa, shall apply to inhuman acts committed for the purpose of establishing and maintaining domination by one social group of persons over other racial groups of persons and systematically oppressing them.” The Rome Statute governing the operations of the International Criminal Court lists apartheid in Article 7 as one of several enumerated crimes against humanity, without any reference to South Africa.
Although Israel was accused of racism in many settings, the language of apartheid was not frequently employed by international critics until recently. An exception were the two well conceptualized books by the Israeli/Palestinian scholar Uri Davis who published Israel: An Apartheid State (1987) and Apartheid Israel: The Possibilities for the Struggle Within (2003). Somewhat revealingly, a series of Israeli politicians going back to David Ben-Gurion warned that Israel risked becoming an apartheid state if it did not find a political solution for its relations with the Palestinian people. These statements were always in Hebrew, and if anyone dared accuse Israel of apartheid in English or in an international venue they were branded by Zionists and Israeli leaders and diplomats as guilty of flagrant anti-Semitism. Even former American president, Jimmy Carter, did not escape such a response when he had the temerity to entitle his book Palestine: Peace not Apartheid (2006).
It became increasingly common for Palestinian activists to refer to Israel’s occupation policy as exemplifying apartheid, but without any great deal of effort to specify the particulars in terms of policies and practices that satisfied international law requirements of intentionality and official policy.
The Originality of Israeli Apartheid
It is striking that the charismatic South African personalities, including Nelson Mandela and Archbishop Desmond Tutu, saw the core resemblance between their struggle against apartheid and the Palestinian struggle, despite notably different demographic, cultural, political, and security conditions in the two national settings. Up to the present time, of all governments, including those in the Arab World, that of South Africa stands most strongly in solidarity with Palestinian aspirations, as well as having taken the lead in the wider undertaking of the Durban process to combat all forms of racism. This expression of a politics of recognition because it is spontaneity lends powerful support to the view that allegations of apartheid directed at Israel rest on a firm empirical foundation.
Further confirmation came from the expert reports of UN Special Rapporteurs on human rights in the Occupied Palestinian Territories during the last two decades. Focusing on conditions of dual legal, discriminatory administration of Palestinians and Jewish settlers within the territorial confines of the West Bank Israel was increasingly perceived as relying on an apartheid structure, at least in relation to its post-1967 occupation policies. The rights of the settlers were fully protected by being subject to Israeli civil and criminal law, whereas the Palestinian were essentially without rights, being subject to military administration for more than 50 years. In effect, the occupation of the West Bank, and by different pragmatic policies that took account of the situation, East Jerusalem and the Gaza Strip, involved subjugation of the Palestinians to enable and sustain Jewish dominance over the whole of the territory comprising the British Mandate, which itself was co-terminus with the former Ottoman province of Palestine. As the occupation gradually assumed the character of partial de facto annexation, it represented the outreach of the Zionist Project beyond the 1967 Green Line territorial limits of Israel.
A major step was taken in 2017 when the UN Economic and Social Commission for Western Asia (ESCWA) released an independent academic report entitled ‘Israel’s Practices Toward the Palestinian People and the Question of Apartheid’ that had been contracted to explore the growing perception throughout international society that Israel had established an apartheid regime to safeguard the Zionist Project of racial dominance. The study was a comprehensive assessment of the apartheid argument according attention to the particularities of Israeli control over the Palestinian in various contexts, and although commissioned by the UN, a prominent disclaimer made it clear that report was not a statement by the UN, but represented the views of its two authors.
The distinctive approach of the ESCWA report was to analyze the evidence of Israel’s distinctive ways of achieving and maintaining discriminatory dominance over the Palestinian people. It should be recalled the Zionist Project was insistent on Jewish statehood within a legal framework that included most of the elements of institutionalized democracy—elections, citizenship available independent of race, rule of law, independent judiciary, parliamentary legislature, and a Basic Law category that seemed somewhat equivalent to a constitution. To reconcile these twin goals Israel had early recourse to a politics of fragmentation, multiply dividing the Palestinian people so as to weaken the Palestinian capacity and will to resist. The main divisions among the Palestinians were first between those living within territorial Israel and controlled by discriminatory laws that imposed a variety of restrictions and those outside direct control. And then, the conditions imposed on the three occupied domains of West Bank, East Jerusalem, and Gaza were designed to create separation and rivalry. As well, practices of multiple checkpoints in the West Bank, insecurities surrounding Palestinian residency in East Jerusalem, and harsh repressive controls over Gaza including restricting travel to other parts of Occupied Palestine. Beyond this type of fragmentation, there were others, including the denial of rights of repatriation to Palestinian refugees living under Israel control or in neighboring countries, and refusal of immigration to Palestinian exiles. A further pernicious form of fragmentation was caused by the Oslo Framework of Principles, which divided the West Bank into Areas A, B, and C making interaction and residency outside of Area A burdensome and rigidly regulated. By covert means, Israel tried to keep the Palestinian political representation as disunified and fractious as possible, obstructing all efforts to achieve Palestinian unity so far as the exercise of the right of self-determination is concerned.
The ESCWA report conceptualized the allegations of apartheid around the impact of Israeli control of the Palestinian people, rather than confining the notion of apartheid to specific territory. This is a central difference from the character apartheid assumed in South Africa. This focus on people rather than land exhibited Zionist preoccupations with the Palestinian demographic threat, which largely accounts for the expulsions, exclusions, and fragmentation. It also differs from the way other influential reports characterize Israeli apartheid.
When the ESCWA Report was released in March 2017 it prompted a series of inflammatory responses from Israeli leaders and diplomats, and to a stormy session at the UN Security Council at which the ambassador representing the United States demanded with threatening rhetoric that the UN Secretary General repudiate the report. The SG did not comment directly on the report, but dutifully ordered its removal from the ESCWA website. The ESCWA Director resigned rather than carry out such a directive, although her successor complied. Actually, the UN firestorm that resulted from the attack never challenged the substance of the conclusions or supporting analysis, but gave the report attention it would not have normally received, leading to widespread confirmations in a variety of academic and journalistic settings of the central allegation of Israeli apartheid, helping to set the stage for what was to come.
A major development in the direction of focusing Palestinian grievances on apartheid was inadvertently taken by the Israeli Knesset when it enacted a Basic Law in 2018. This law affirms the central Zionist tenets that Israel is the state of the Jewish people, Hebrew its official language, and only the Jewish people enjoy the right of self-determination. The latter claim contradicting the 14-1 majority in the International Court of Justice 2004 Advisory Opinion in the “Legal Consequences of the Construction of a Wall on Occupied Palestinian Territory,’ which confirmed that the Palestinian people are entitled to exercise a right of self-determination, although its scope was not specified.
Yet more authoritative confirmations of the allegation of the crime of apartheid implicated the manner of governance exercised by Israel were published in 2021. The Israeli human rights NGO, B’Tselem on 12 January published its devastating assessment of the apartheid allegation under the telling title of “This is Apartheid: A regime of apartheid from the Jordan River to the Mediterranean Sea.” Aside from summarizing the Israeli practices that justified the main inference of the Report, it reached the significant conclusion that Israeli occupation policies in the West Bank and East Jerusalem were annexationist in character and intent, and coupled with the assertion in the 2018 Basic Law that the Israeli settlement were integral to Israeli statehood, created a one-state reality. This led B’Tselem to identify the territorial scope of Israeli apartheid as incorporating the ‘occupied’ West Bank.
An even more consequential report accepting the allegations of apartheid was issued by Human Rights Watch on 27 April 2021 under the title ‘A Threshold Crossed: Israeli Authorities and the Crimes of Apartheid and Persecution.’ This report contains an exhaustive overview of the policies and practices that led HRW to break ranks with the liberal mainstream in the U.S., and add its considerable weight to the momentum behind the apartheid allegation. Both of these breakthrough reports place stress on the centrality of Israeli efforts to ensure the maintenance and extension of Jewish supremacy entailing harsh practices of Palestinian subjugation, which in the wording of the Apartheid Convention constitute ‘inhuman acts,’ integral to the crime. These include discriminatory immigration laws, Jewish land appropriation practices, restrictions on Palestinian mobility, and strict limitations on Palestinian participation including treating criticism of the Zionist Project in any of its past or present policies as ‘incitement,’ a punishable crime.’
Although as yet there is no legally authoritative international assessment of Israeli apartheid, yet the reliable evidence so far assembled and analyzed overwhelmingly supports the allegation, and is increasingly accepted by world public opinion as descriptive of the victimization of the Palestinian people. It is yet to be accepted by the liberal democracies in the West or in the formal annals of the United Nations.
It remains unresolved as to whether apartheid should be conceived in relation to the Palestinian people, hence inclusive of refugees and exiles, or confined to territory under Israeli sovereign or de facto control.
The reality of Israeli apartheid subjects the Palestinian people to a flagrant continuing crime, thus deserving of a full investigation by the International Criminal Court. International law imposes a distinct legal authority upon governments, international institutions, and civil society to take steps to suppress and punish the perpetration and persistence of apartheid, thereby vindicating nonviolent opposition, including the international BDS Campaign, an outgrowth of Palestinian civil society resistance.
The worldwide anti-apartheid movement against South Africa is a useful precedent illustrating the effectiveness of well-organized nonviolent resistance to apartheid. It is also instructive in establishing that racial peace and fundamental human rights for political communities cannot be achieved without the prior unconditional elimination of apartheid structures, policies, and practices.
In effect, without the substantial abandonment of the Zionist Project it is unrealistic to think that a sustainable and just peace between Jews and non-Jews in former Palestine is attainable.