[Prefatory Note: This post was originally published on March 22, 2017 by The Nation under the title “The Inside Story of Our UN Report Calling Israel an Apartheid State,” the text of which can be found at this link: https://www.thenation.com/article/the-inside-story-on-our-un-report-calling-israel-an-apartheid-state/ What is below is somewhat modified.]
Is Israel an Apartheid State?
Six months ago, the UN’s Economic and Social Commission for West Asia (ESCWA) asked Virginia Tilley and me to write a study examining the applicability of the international criminal law concept of apartheid to Israel’s policies and practices toward the Palestinian people. We were glad to accept the assignment, and conceived of our role as engaging in an academic undertaking. ESCWA, one of several UN regional commissions, requested the study as a result of an uncontested motion adopted by its 18 Arab member governments.
Almost within hours of its release on March 15, our report [bearing the title “Israel’s Practices Toward the Palestinian People and the Question of Apartheid”] was greeted by what can only be described as hysteria and derision. The newly appointed US ambassador to the UN, Nikki Haley, denounced the report and demanded that the UN repudiate it. The newly elected Secretary General, Antonió Guterres, quickly and publicly called for ESCWA to withdraw the report from its website, and when Rima Khalaf, the head of the commission, resisted, Guterres insisted. Rather than comply, Khalaf resigned, explaining her reasons in a gracious, principled letter to the Secretary General, an eloquent expression of public conscience that is itself extremely rare in UN experience and worthy of the most favorable notice and commentary. [for text of letter see Soon thereafter, the report was withdrawn from the commission’s website, despite containing a very clear disclaimer at its outset noting that the report represents the views of its authors and not necessarily that of ESCWA or the UN.
What is striking about this pattern of action and reaction, which resembles in many respects the US government response to the Goldstone Report (the UN Fact-Finding Mission on the Gaza Conflict of 2008-9), is the degree to which Israel’s officials and supporters, in response to criticism, have sought to discredit and wound the messenger rather than address the message by offering a detailed substantive explanation and defense. Each time such a technique succeeds in this mission of discrediting, wounding, and diverting attention the role of the UN as a promoter of the public good is weakened, and the Organization becomes rather an instrument by which dominant geopolitical forces assert their will at the expense of truth, reason, and human wellbeing.
Virginia Tilley, a professor of political science at Southern Illinois University Carbondale and a leading world expert on apartheid, and I, as well as ESCWA, would welcome substantive discussion and critical feedback, and we had hoped that our analysis and conclusions would provide the basis for debate, dialogue, and further consideration of the recommendations appended at the end. ESCWA, for its part, took steps to ensure that the report lived up to scholarly standards, submitting the draft text to three prominent international jurists, who had been anonymously solicited to offer objective vetting. Each submitted a strong positive appraisal along with suggestions for revision, which we gratefully incorporated before the final text was released. Against this background, it is irresponsible for government officials and others to dismiss our report as a biased polemic, and to do so damages the authority of the UN and respect for international law.
It is also misleading to do what the American and Israeli diplomats did, as well as the media– treating this study as if a report officially endorsed by the UN. Such treatment overlooks the disclaimer on the opening page of the report, which clearly states that the analysis and interpretations presented are those of the authors alone, and are not to be attributed to the UN. In effect, it is a document initiated by a UN agency, appraised for quality by reference to scholarly standards, but not adopted nor even endorsed at this point, although this might happen in the future, a step we as authors would welcome.
During my tenure as the UN’s Special Rapporteur on human rights in the occupied Palestinian territories (2008-14), I witnessed how defenders of Israel attempted to discredit critics. My reports in that post often included sharp criticisms of Israel and other actors, ranging across various topics including defiance of international law, unlawful expansion of settlements, excessive use of force, and complicity of international corporations and banks that do business for profit with the settlements, and others. To my surprise, I never received substantive pushback regarding these specific allegations, but I did have the unpleasant experience of having my words on completely unrelated issues torn out of context, and brought to the attention of UN high officials and important diplomats representing member states. Among my harshest critics were not only the usual ultra-Zionist NGOs, but also Barack Obama’s diplomats at the UN, including Susan Rice and Samantha Power, as well as then-Secretary General Ban Ki-moon. I mention this personal experience only to note that it falls into a longstanding pattern of diversionary rebuttal that prefers to smear rather than engage in reasoned debate about the important issues of law and justice at stake.
The international crime of apartheid was authoritatively specified in the 1973 Convention on the Suppression and Punishment of the Crime of Apartheid. The main elements of the crime consist of deliberate and systematic acts of racial discrimination with the purpose of maintaining unlawful structures of racial domination, that is, a dominant race subjugating another race. Our report also considered whether, in the context of inquiring into the presence of apartheid, it was appropriate to consider Jews and Palestinians as distinct races; we found that there were abundant grounds for doing so. As our report shows, “race” in this legal context is treated as a socially and politically constructed category developed to identify a distinct people. It has no necessary correlation with biogenetic realities, which in this case actually shows an overlap between Jews and Palestinians.
Even Palestinian citizens of Israel, who can vote and form political parties, are subject to many discriminatory laws that impair security and the quality of life. The report also proceeds from the proposition that whether apartheid exists or not depends on the overall treatment of the Palestinian people as a whole, and not by accepting the fragmentation that has been imposed by Israel. Adopting what we believe to be an innovative methodology, we approached this challenge by dividing the Palestinians into four domains that correspond to the manner in which Israel has exercises its authority over the course of many decades, although the specific tactics of control vary through time. In the past, a thorough study by international law scholars found that Israel’s practices in the occupied Palestinian territories are consistent with apartheid [See Virginia Tilley, ed., Beyond Occupation: apartheid, colonialism and international law in the occupied Palestinian territories [Pluto: London, 2012]. It called attention to the discriminatory treatment of Palestinians, who are subject to military administration as compared to the Jewish settler population, which enjoys the full benefit of the rule of law as it is observed in Israel in relation to Jewish nationals. That study found that “settler-only roads,” dual legal systems, and the draconian separation of the two populations into regions on the basis of race hallmarks of apartheid. Repressive practices that have made the lives of ordinary Palestinians a daily ordeal are a core dimension of this racially organized system of control. It should be also noted that according to preferred readings of international law, penalizing and criminalizing nonviolent forms of resistance to apartheid itself constitutes the crime of apartheid.
A second domain investigated in the report involves Palestinians who are residents of Jerusalem. Here the apartheid character of Israeli rule is exhibited in the way the government of Israel severely undermines the human security of Palestinians living in Jerusalem, manipulating their rights of residence as well as imposing a variety of discriminatory practices, ranging from fiscal measures, demolitions, to the arbitrary withholding of building permits.
The third domain deals with the Palestinian minority living in Israel, perhaps the most problematic component in terms of establishing a definition of apartheid that encompasses the entire Palestinian population. In this category are some 1.7 million citizens of Israel, who are allowed to form political parties and vote in elections. But this minority, which makes up about 20 percent of the overall Israeli population, is prohibited by law from challenging the proclaimed Jewish character of the state and is subject to a wide range of discriminatory nationality laws as well as administrative practices that severely restrict their rights, with effects on land acquisition, property, immigration, family reunification, and marital freedom.
International law has detached apartheid from its South African origins; it’s now a stand-alone crime against humanity that does not stand or fall by whether it contains similar features to those that constituted the apartheid regime in South Africa.
A fourth domain, and the one affecting the largest demographic segment, is made up of Palestinians registered as refugees by UN procedures or living under conditions of involuntary exile. In the background is Israel’s rejection of UN General Assembly Resolution 194 (1948), which confirms that Palestinians dispossessed or displaced by Israel in 1948 enjoy a right of return. General Assembly Resolution 3236 declares this right of return or repatriation to be an “inalienable right,” which thus presumably incorporates those additional several hundred thousand Palestinians later displaced by the 1967 war. As far as is known, no Palestinian displaced since the establishment of Israel in 1948 has been granted a right of return to resume residence.
The report argues that the crime of apartheid has been detached from its historical origins in South Africa. Neither the 1973 Convention nor the 1998 Rome Statute underlying the International Criminal Court ties apartheid to South Africa, but rather treats its practice as a stand-alone crime against humanity. Thus, there are important differences between the way apartheid operated in South Africa and the way it is currently being imposed on the Palestinians, but these differences are not relevant to the question of whether it fairly and accurately applies to Israel. One notable difference is that in South Africa the Afrikaner leadership forthrightly proclaimed apartheid as a reflection of its ideological belief in the separation of races, whereas for Israel such a structure of separation on the basis of race is denied and repudiated, and its attribution is treated as an inflammatory insult. There are other differences as well, relating to degrees of labor dependence and the demographic ratio between Jews and Palestinians.
This quasi-permanent structure of domination cannot be justified or explained by reference to Israel’s legitimate security needs.
Our report concludes that Israel has deliberately fragmented the Palestinian people in relation to these four demographic domains, relying on systematic discrimination, including “inhuman acts,” primarily to maintain its control and render resistance more difficult, while continuing to expand territorially at the expense of prospects for Palestinian self-determination. On the basis of these findings—backed up by detailed presentations of empirical data, including reliance on Israeli official sources—we conclude that the allegation of apartheid as applied to the Palestinian people is well founded and descriptive of the present situation, more so than the terminology of occupation.
As earlier suggested, we are keenly aware that our report is the work of academic investigators and does not represent an authoritative finding of apartheid by a formal judicial or governmental institution. As mentioned—contrary to media coverage and diplomatic denunciations—the report has never been endorsed or accepted by the UN, or even ESCWA. We do recommend such an endorsement, and we urge the UN, national governments, and civil society to take measures designed to encourage Israel to dismantle its apartheid regime and treat the Palestinian people in accord with the dictates of international law and human rights, as well as elementary morality.
The broader setting associated with our contention that Israel has become an apartheid state draws on the reality that there is no peaceful resolution to the conflict on the diplomatic horizon, and thus no foreseeable prospect for ending the discriminatory regime and the attendant suffering of the Palestinian people. This quasi-permanent structure of domination cannot be justified indefinitely by invoking Israeli security needs, which are themselves partly created by the unwillingness of Israel to respect Palestinian rights under international law. A people cannot be permanently repressed in by military force and administrative coercion ways without viewing the structure that has emerged as an apartheid regime. Indeed, part of the reason for not awaiting a more formal assessment of these charges of apartheid is our sense of urgency in ending a set of arrangements that have for so long been responsible for so much suffering and denial of basic rights, above all the right of self-determination.
It remains our central hope, one shared with ESCWA, that the widespread availability of this report will lead to a clearer understanding of the Palestinian plight and encourage more effective responses by the UN, by governments, and by civil society. Beyond this, it is our continuing wish that people of good will throughout the world, especially within Israel, will work toward a political solution that will finally allow Jews and Palestinians to live together in peace, with justice.
Global Justice in the 21st Century 
The U.S. Attack on al-Shayrat Airfield
8 AprIn early morning darkness on April 7th the United States fired 59 Tomahawk cruise missiles at the Syrian al-Shayrat Airfield from two American destroyers stationed in the Eastern Mediterranean. It described the targets as Syrian fighter jets, radar, fuel facilities used for the aircraft. It asserted prior notification of Russian authorities, and offered the assurance that precautions were taken to avoid risks to Russian or Syrian military personnel. Pentagon spokespersons suggested that in addition to doing damage to the airfield, the attack had the intended effect of “reducing the Syrian government’s ability to deliver chemical weapons.”
President Donald Trump in a short public statement justified the attack as a proportionate response to the Syrian use of chemical weapons against the town of Khan Sheikhoun in the western Syrian province of Idlib a few days earlier, which killed an estimated 80 persons, wounding hundreds more. Although there were denials of Syrian responsibility for the attack from Damascus and Moscow, a strong international consensus supported the U.S. view that Bashar al-Assad had ordered the attack allegedly as a means of convincing opposition forces concentrated in Idlib that it was time to surrender.
In the background, is the conviction among the more militaristic policy advisors and political figures, including Trump, that President Barack Obama’s failure to enforce his 2012 ‘red line’ warning to Syria emboldened Assad to launch this latest attack with chemical weapons. Of course, this is all hawkish speculation that can be neither proven nor disproven, but it undoubtedly influenced the Trump entourage to suppose that it was presented with an opportunity to exhibit a greater readiness to use American military force in the Syrian conflict, incidentally, an outlook long advocated by Hillary Clinton and many of her advisors and foreign policy supporters. To do so, abandoned one of Trump’s signature pledges, to avoid military engagement in the conflicts raging throughout the Middle East, which he portrayed as a costly failure of prior American political leaders. Trump under pressure due to the growing evidence of ties with Russian political leaders during the 2016 presidential campaign may have welcomed an occasion on which to demonstrate his independence from Moscow and Putin. The departure from the Trump campaign agenda is particularly pointed as there were no American casualties resulting from the attack on Khan Sheikhoun 60 hours earlier than the Tomahawk response.
In Trump’s brief public rationale, the red line argument was not relied upon, but rather the combination of humanitarian outrage and grief with an assertion of the “national security interest of the United States to prevent and deter the spread and use of deadly chemical weapons.” This geopolitical purpose was reinforced by a cursory appeal to international law and even the UN Security Council: “There can be no dispute that Syria used banned chemical weapons, violated its obligations under the Chemical Weapons Convention and ignored the urging of the U.N. Security Council.” Yet identifying Syria’s evident violation of international law should not be confused with an international law justification for the use of retaliatory force. In using this language Trump was evidently seeking to weaken the impression of an irresponsible unilateral American recourse to non-defensive force without bothering to seek an endorsement from the U.S. Congress or the UN. Not surprisingly Moscow and Damascus both condemned the attack as an act of ‘aggression’ and ‘a flagrant violation of international law.’
Trump used some additional words designed to draw attention away from the unilateral nature of the attack by contending that it fulfilled the common goals of “civilized nations” to deter Assad and defeat terrorism, thereby linking the American initiative to what he called ‘justice’ rather than basing legitimacy exclusively on an appeal to ‘law’ or ‘order.’ Trump expressed this sentiment as follows: “And we hope that as long as America stands for justice, that peace and harmony will in the end prevail.” This is very different in tone, substance, and policy from Trump’s campaign rhetoric, which stridently stressed ‘America first,’ clarified as a call to act with reinvigorated resolve to devote military capabilities exclusively to promoting U.S. material national interests, and to stop wasting resources and energy by trying to address the larger concerns of the world, especially in the Middle East. This abrupt affinity with an internationalist spirit is made explicit in Trump’s final words—“Good night, and God bless America and the entire world.” As far as I know, this ritualistic invocation of God so much associated with George W. Bush and mimicked by Barack Obama never was extended to include “the entire world,” which is such an unfamiliar wording as to suggest that it was deliberately inserted to stake a quite unexpected and renewed claim to American moral leadership in world affairs. As with the attack itself, it seems likely to be a one/off embrace of cosmopolitan sentiments, but it is still worth noting. After all, language matters.
As has been suggested, bombing a Syrian airfield is unlikely to help Syrian children exposed to the terrible ravages of this war, that is, unless it does create a new momentum for a sustainable ceasefire. Already, the Russian reaction signals a worsening of relations with the United States in Syria and generally, and may end up producing the kind of confrontation that had led Republicans in the national security establishment to abandon Trump during the presidential campaign a year ago. With the removal of Bannon from the National Security Council it may not be premature to suggest that the deep state has found ways to reestablish its influence on national security policy after all seemed lost due to Trump’s electoral victory and vindictive attitude toward ‘the intelligence community.’ It is far too early to say that bureaucratic wars are over, but there is at the very least clear movement evident toward the restoration of the pre-Trump established order in Washington.
The Khan Sheikhoun attack raises more fundamental questions that are neither raised nor resolved by Trump’s speech. Despite making a gesture in the direction of international law by reference to the Chemical Weapons Convention and Security Council directives, the strike against al-Shayrat Airfield was a non-defensive use of force by the United States that violates the core UN Charter prohibition unless carried out on the basis of an explicit Security Council authorization. It is precisely the sort of unilateralism that the Charter, and post-1945 international law, made unlawful. In this context there was no urgency or necessity to strike immediately that might have made the departure from Charter norms seem more reasonable. Of course, Security Council authorization would not have been forthcoming, given the near certainty that Russia would use its veto. In that sense, assuming the attribution of responsibility for the chemical weapons attack to the Assad regime holds up, which is by no means assured, there is a dilemma presented when the moral and political case for action is strong, but lacks an ample justification in international law.
Of course, international law has for more three decades given way to the dictates of counterterrorism policies, which have featured retaliatory strikes ordered by American presidents without international authorization. Has this pattern of essentially unchallenged practice by the U.S. Government done away with the legal constraints of the UN Charter? Some jurists suggest that state practice of this character creates new expectations about the scope of legality of international uses of force by states in addressing security threats posed by non-state actors or by internal threats of state/society atrocities as here and in the Kosovo War of 1999. In a decentralized world, lacking governmental authority at regional and global levels, it seems regressive to endorse this return to a state of affairs where warfare is discretionary, and international law and respect for the authority of the United Nations are reduced to considerations of convenience and self-interest, and thus, as here, when inconvenient, a powerful state can use force with unconditional impunity in pursuit of its foreign policy goals.
There are also accompanying prudential questions about recourse to a military response in this instance where the intended target is the internationally recognized government of a sovereign state that is engaged in a protracted civil war. Is this a further challenge to state-centric world order? Will the attack magnify the conflict still further rather than deter Assad and make a political compromise more likely? Will the antagonism of Russia and Iran make it more difficult to bring the conflict to an end by reliance on diplomacy? There is no way to answer such questions beyond the observation that where, as here, international law opposes recourse to force, the risks of further escalation are considerable, and the rise of geopolitical tensions inevitable, the presumption should be strongly against a military response.
Then there are domestic questions about whether it is okay for an American president to resort to an international use of force without some sort of Congressional debate and authorization (short of a Declaration of War). Again Trump has plenty of precedents for acting without a specific Congressional authorization from the presidencies of Ronald Reagan, Bill Clinton, and George W. Bush. Executive warmaking authority was definitely increased after the 9/11 attacks, and given a limited, although broad, legislative imprimatur in the Authorization for the Use of Military Force (AUMF) statute of 2001. AUMF is limited to those forces responsible for the 9/11 attacks and ‘associated forces,’ which the Obama presidency interpreted to extend to Al Qaeda wherever located, and without any time horizon. It seems beyond doubt that constitutionalism in the war/peace context has been severely weakened over the course of the last 70 years, and this latest episode just continues the trend. It would seem that where there is no necessity to act instantly and where there is no formal UN authorization, the underlying republican commitment to checks and balances to avoid abuses of power, should have led Trump to seek authorization from Congress, and in light of his failure to do so, a critical reaction from Congress.
There are two clusters of serious questions raised. Is this a new turn toward belligerent internationalism by the Trump presidency that will shape the near future of American foreign policy in the Middle East, and possibly elsewhere? Does the reversion to unilateralism with respect to international uses of force heighten the risks of geopolitical escalation and large-scale warfare, including possibly the threat or use of nuclear weapons?
Tags: Chemical Weapons, international law, Syria, Trump, UN