False Knowledge as Power: Deconstructing Definitions of Apartheid: A Historical and Apartheid that Delegitimise Legal Analysis of a Libel the Jewish State Against the Jew

Report by Anne Herzbeg and Joshua Kern, December 2021

The discourse on apartheid in the Israeli-Palestinian context is not new but it has fluctuated in intensity over the course of seven decades. Between January and June 2021, however, the campaign to brand Israel as a violator of the inter-State prohibition of apartheid, or its officials guilty of the crime, redoubled when several influential civil society organisations and authors – most notably Human Rights Watch and B’Tselem – launched a campaign alleging that Israeli officials are responsible for commission of crimes against humanity including apartheid. In parallel, Diakonia, a Swedish aid agency, meanwhile commissioned Professor Miles Jackson for an opinion on the interplay between the legal regimes applicable to belligerent occupation and the inter-State prohibition of apartheid under international law. Concurrent with these reports, in May 2021 two UN bodies – the Human Rights Council and the Committee on the Elimination of Racial Discrimination (CERD) – empanelled commissions to examine the charge of apartheid. There was also renewed lobbying directed at the Office of the Prosecutor of the International Criminal Court to investigate apartheid in Israel/Palestine. However, not one of these reports and initiatives has undertaken a detailed legal analysis of apartheid’s definition as a crime against humanity. This is a contribution which this report provides, for use by academics, practitioners, journalists, and others.

The apartheid charge against Israel began with anti-Zionist Soviet propaganda in the 1950s, and has since been adopted and refined, including the rhetoric of Arab states and the PLO of the 1960s, through to the work of UN Rapporteurs John Dugard and Richard Falk from the 2000s, and most recently amplified by NGOs. In 1965, PLO official Fayez Sayegh referred to Israel as an “alien body” in the Middle East and alleged that Jews’ “supposed” common ancestry masks a fake and constructed nationhood, whilst claiming at the same time that “not even in South Africa or Rhodesia has European race-supremacism expressed itself in so passionate a zeal.” Sayegh highlighted what he described as Zionism’s “congenial, essential” racism and “aspiration to racial self-segregation.” In 2021, his work was endorsed by Noura Erakat on the blog of the European Journal of International Law and by Tareq Baconi in the New York Review of Books.

In 1965, the Soviet Union spearheaded efforts to have Zionism included as a form of racial discrimination during drafting of the International Convention on the Elimination of all forms of Racial Discrimination. By 1975, the Arab League and the Soviet bloc had succeeded in passing a General Assembly resolution equating Zionism to racism. Although the resolution was repealed in 1991, the apartheid charge was revived at the UN during the preparations for the 2001 Durban Conference where Israel’s “brand of apartheid” was used as the basis for a campaign to isolate and delegitimise the Jewish State in a manner akin to the boycott of apartheid South Africa. In a 2007 report to the UN Human Rights Council, Dugard queried the “legal consequences of a regime of prolonged occupation with features of colonialism and apartheid,” and recommended that it be addressed in an advisory opinion of the International Court of Justice. In 2009, the Human Sciences Research Council of South Africa published a detailed report claiming to scrutinise Dugard’s suggestion. This study has since given rise to a series of academic papers, NGO publications, and reports from other UN Rapporteurs and agencies. A paper (authored in part by Falk) and issued by the UN agency ESCWA in 2017, making similar claims was deemed to be “false and biased”, leading UN Secretary General Antonio Guterres immediately to recall it.

To date, Israel’s response has been dismissive. The apartheid allegation has been met by accusations of antisemitism, and these responses have been rejected by Palestinian advocates and their supporters in turn. Yet the debate reveals uncomfortable truths both for those making the allegation, as well as for Israel itself. For Israel and its supporters, after more than 60 years of military administration in the West Bank, a conversation that frames discrepancies in treatment of Israelis and Palestinians by reference to a discourse of institutional discrimination is inherently unavoidable. An apartheid comparison may not necessarily be antisemitic per se as, for example, Nazi comparisons are. Palestinians’ rights are curtailed in “Area C” of the West Bank, which is under Israeli effective control (as established by the Oslo Accords, witnessed and endorsed by representatives of the international community as well as the UN Security Council), and Palestinians and Israelis are subject to separate systems of law there. It is reasonable to expect Israel (or any democracy respectful of the rule of law) to provide objective and substantive justifications for the imposition of prolonged restrictions in areas under its overall control, and to expect criticism for a failure to do so.

On the other hand, the discourse of apartheid framed by those accusing Israeli officials of the crime often employs classical, antisemitic, tropes and themes, and frequently evokes maximalist claims of a resistance struggle spanning “from the river to the sea.” Such rhetoric constitutes a fundamental impediment to a negotiated solution to the Israeli-Palestinian conflict based on territorial compromise. Unsurprisingly, therefore, this discourse is viewed with significant yet reasonable concern by many Jewish communities in Israel and in the diaspora.

Meanwhile, the legal contours of apartheid as a crime against humanity remain underexplored. To date, the crime has never been prosecuted, and accordingly, judicial guidance as to its elements remains lacking. The academy has provided contributions from Carola Lingaas and Miles Jackson, supplementing earlier work by Roger Clark. But significant gaps remain. This report examines this position, where a grave allegation of crimes against humanity is made by civil society actors and there is a subsisting absence in both scholarship and reporting on the content of the elements of the crime itself.

The discourse of apartheid inevitably begins with a conversation on the policies and practices of apartheid in southern Africa between 1948 and 1994. Given apparent consensus that the South African experience informs our understanding of apartheid, it bears recalling core features of those practices. Such an analysis not only provides a comparative, empirical context to the discussion, but it also informs the legal analysis and understanding of the crime of apartheid.

This report is therefore comprised of three sections. The first considers the policy and practices of apartheid as practised in southern Africa. In the second, we examine the nature and evolution of the apartheid allegation levelled against Israeli officials, as well as responses and defences to the allegation to date. The third part examines the law of apartheid and seeks to answer questions relating to the crime’s customary status, the relevance of the southern African experience to its legal definition, and its elements’ definition under the Rome Statute of the International Criminal Court. We unpack the genesis and doctrinal sources of the definition of apartheid applied in recent NGO reporting, and question whether apartheid as a crime against humanity incurring individual criminal responsibility can be said to have crystallised under customary international law at all, irrespective of whether apartheid’s inter-State prohibition is of a peremptory nature.

Given the differing contexts in which apartheid is prohibited, and the absence of universal acceptance of its definition in either the 1973 Apartheid Convention or the Rome Statute, we conclude that the legal basis for the definition proposed in certain NGO publications is doubtful. In a companion report to be published at the beginning of 2022, we will address the application of these legal elements specifically to the situation in Israel, the West Bank, and Gaza Strip.