Israeli Apartheid: The power of the frame, the shame of the name

Palestinian man crosses into Israel from the West Bank through an opening in the Israeli fence near Meitar crossing south of West Bank (Oded Balilty - AP)

Robert Herbst

Mondoweiss  /  July 4, 2022

In the last two years, in a carefully researched and documented confluence of reports, UN, Israeli, regional and international human rights organizations have concluded that the facts on the ground – both in the Occupied Palestinian Territories and in the entire land of Israel- Palestine – amount to the crime of apartheid. B’Tselem, Human Rights Watch, Amnesty International, the United Nations Special Rapporteur for human rights in the occupied Palestinian territory, Yesh Din, and the Harvard Law School International Human Rights Clinic have all adopted the apartheid name and framing, concluding that Israel is an apartheid regime, committing an international crime and a crime against humanity in its systematic oppression of Palestinians.

This is no surprise to Palestinians, 65% of whom agree that they are victims of apartheid. Palestinian human rights groups have for years led the way on this understanding, including Al-Mezan, Al-Haq, and Addameer.

This was not a coordinated effort.  These organizations independently decided that this was the time to call apartheid apartheid and to lay out why.  A substantial majority of Middle East scholars now agree, and the apartheid name and frame is slowly making its way into mainstream media –even The New York Times. Last year the United Church of Christ “reject[ed] Israel’s apartheid system of laws and legal procedures and declared that system a “sin.” Other Protestant churches are heading in the same direction.  

There is clearly a broadening and quickening acceptance in civil society of the apartheid name and narrative frame. 

One of the most interesting things about this development is that we have not seen a consistent effort by Israel or its supporters to challenge the facts or law upon which the charge of Israeli Apartheid is predicated.  Instead, the response has been to label the Apartheid reports and those who wrote them anti-Israel and anti-semitic.

This is a testament to the power of the apartheid frame.  Because it is widely accepted across the globe that apartheid is an international crime, it is difficult for Israel to do what South Africa did for decades in the 1960’s, 70’s and 80’s — defend apartheid as a legitimate way to order a multiracial or multi-ethnic society.  Israel cannot defend apartheid and continue to present itself as a legitimate democracy.  The only other response is to say it ain’t so, this is not apartheid, but so far that response is also lacking, for the simple reason that the charge of apartheid is virtually impossible to defend on the merits, as a quick legal primer and the apartheid reports set forth above show.

The 1976 International Convention on the Suppression and Punishment of the Crime of Apartheid defines “the crime of apartheid” to include inhuman acts committed for the purpose of establishing and maintaining domination by one racial group of persons over another and systematically oppressing them.  These inhuman acts include not only depriving the oppressed group members of life or liberty of person by killing, wounding and arrest/imprisonment, but also “any legislative or other measures calculated to prevent a racial group from participating in the political, social, economic and cultural life of the country and the deliberate creation of conditions preventing the full development of such a group’s basic human rights and freedoms,” including the right to education, to leave and return to their country, the right to a nationality, the right to freedom of movement and residence, and the right to freedom of peaceful assembly and association; and any measures “designed to divide the population along racial lines by the creation of separate reserves and ghettos, or the expropriation of landed property belonging to a racial group or members thereof.”

Moreover, the convention declares apartheid to be a “crime against humanity,” and it imposes international criminal responsibility on “individuals, members of organizations and institutions and representatives of the State,” whether or not residing in the territory of the State in which the acts are perpetrated, if they “commit, participate in, directly incite or conspire in the commission of the acts” constituting apartheid, or “abet, encourage or co-operate in the commission of the crime of apartheid.”

The Additional Protocol to the Geneva Convention, added one year after the Apartheid Convention, prohibits the willful commission of  the practices of  apartheid and labels those apartheid practices “war crimes.” In 1998, Article 7 of the Rome Statute of the International Criminal Court defined the crime of apartheid as a crime against humanity subject to its jurisdiction if it is committed “as part of a widespread or systematic attack directed against any civilian population.”

What the recent Apartheid reports do is detail how the facts on the ground meet these legal standards of the crime of apartheid – in spades:  the system of racial, creed or ethnic separation intending to maintain domination by the Jewish group over the Arab Palestinian group, and the legal measures and accompanying inhuman acts that enforce and maintain that separation.  Pick any of the reports and see it whole:  the deliberate fragmentation of the Palestinians by where they live, the military rule over Palestinians without rights, the Wall and checkpoints restricting travel and freedom of movement, the scores of discriminatory laws inside and outside the Green Line, the pervasive arbitrary system of permits and licenses restricting housing and economic development, the extrajudicial killing and maiming of unarmed civilians, the arbitrary detentions, arrests, imprisonments and torture, the collective punishments, and more, all deliberately and systematically engineered. 

The difficulty of defending against the charge of Israeli apartheid can be seen in a recent webinar debate sponsored by the Palestine-Israel Journal on “Israel and the Apartheid Threshold: A Wake-Up Call.” Frances Raday, Hebrew University Emerita Professor of Law, called her talk “Amnesty’s Tragic Framing of a Tragedy,” and she had plenty of criticisms of Amnesty’s Apartheid report, and of the distortions she claimed are in its conclusions, but she had to acknowledge that, in the West Bank, the report’s portrayal is accurate and amounts to inhumane acts as defined in the Rome Statute, which could properly be characterized as apartheid as well occupation or settler colonialism. 

Dr. Tony Klug, formerly of Amnesty International for 15 years, was unhappy with the apartheid label because he thought the best way to combat the human rights violations was to bring the conflict to a quick end, and he did not see how the apartheid name and frame helps to bring that about.  But he, too, acknowledged that the West Bank and East Jerusalem are ”apartheid by design,” entrenching those human rights violations.  In Israel proper, where “there is an entrenched package of abuses, and a full panoply of rights and privileges (only) for Jewish citizens, and Palestinians serve as members of the government, doctors, and lawyers all within segregated institutions,” Klug questioned where to place the “threshold” between “discrimination” and “the great sin of apartheid.”  But in the whole space between the River and the Sea, with “one space, two peoples, two systems,” like the West Bank, he admitted that “Israel does not have a case against apartheid.”      

Alon Liel, the former Israeli Ambassador to South Africa and former director general of the Ministry of Foreign Affairs, noted that ten years ago, Israeli intentions changed, dispensing with the two state solution and ending the occupation in favor of annexation. Analogizing to South Africa, he noted that rather than recognizing the collective rights of the indigenous black South Africans, the white Afrikaners got it in their minds that they had developed the land, schools and hospitals, and thought it was the right thing to do to dominate the blacks forever.  That was apartheid, Liel said, and so it is with Jewish Israelis, who are overwhelmingly of like mind with respect to the Palestinians.  The resistance in South Africa did not call it discrimination, they called it apartheid.  It took 45 years for the West to understand the meaning of the word, but when it sunk in, the name had sufficient impact in the international community to bring apartheid to an end.

And there it is, the power of the apartheid framing.  Only two countries in the world besides Israel have been accused of apartheid: South Africa and Myanmar, and in the latter, only in one province, with the Rohingya, not in the nation as a whole.  Today, apartheid is globally recognized as an egregious international crime, a crime against humanity and a war crime.  The apartheid name and frame therefore pack a punch, a wallop, that the human rights frame, the occupation frame, the settler-colonial frame, do not. 

A widening global acknowledgment of Israeli apartheid inherently comes with the need for immediate action to dismantle the apartheid regime, to stop this crime against humanity.  A few reforms won’t cut it.  Apartheid therefore has the capacity to engage the international community in a way that the frames of settler colonialism, human rights, discrimination, and occupation have all failed to do. 

Because of 74 years of American support for Israeli impunity, the arc of the moral universe has barely started to bend toward justice over there, and it may take another 45 years for the apartheid name and frame to achieve the result we are hoping for.  But at least we now have a tool for organizing and persuasion of great potential potency, if we bang the apartheid drum often and loudly.  My old international law professor Richard Falk calls this new flourishing of the Apartheid narrative a huge victory in the symbolic domain of the legitimacy war, the domain where most conflicts since WWII have been won or lost. 

Michael Lynk, whose six year term as UN Special Rapporteur for human rights in the occupied Palestinian territory ended earlier this year shortly after he delivered his Israeli apartheid report, wrote last week of the power of the apartheid framing. Calling Israeli Apartheid What It Is (at DAWN). When Lynk started his term, he believed that “using the language of apartheid” would “surely only harden diplomatic hearts and close doors.  My initial strategy was to focus on international humanitarian law – the laws of war and occupation – and international human rights laws” – a “rights-based framework.”  But five years later, “surprised by the utter unwillingness of most member states from Europe to North America to Oceania” to “impose accountability” on Israel, which “has defied more than 30 Security Council resolutions demanding that it undo its illegal annexation of East Jerusalem, end its illegal settlements” and “wind up its occupation,” Lynk “accepted the futility” of relying on the “tools of international humanitarian and human rights law,” which “could no longer adequately capture the new legal and political reality” on the ground, which he now realized was “indistinguishable from annexation and apartheid.”  The number of Israeli settlers in the West Bank and East Jerusalem had grown in those five years from 620,000 to 715,000, in Jewish-only communities with full citizenship rights, while five million Palestinians live among them are subject to Israeli military law or “under a truncated form of precarious residency rights.”

So Lynk decided to call apartheid by its true name.  And his apartheid report, he noted, received more international media coverage than any of his previous reports on OPT human rights violations.     

That this has happened in the last two years seems to be a result of the widening realization and acceptance of the death of the Two State Solution — that Israel never really wanted, and would never permit, a real legitimate, contiguous Palestinian state like other nation-states, rather than a series of isolated Bantustans that would continue to be subservient to Israel, and would never remove the 700,000 settlers in E Jerusalem and the West Bank.

Manual Kas Hassan, the Palestinian Authority’s Ambassador to Denmark, who also participated in the Palestine-Israel Journal debate, was perhaps the most fervent opponent of the apartheid framing.  “Settler colonialism, discrimination or apartheid is not the question,” he said. “The issue is the occupation.”  He was very concerned that the apartheid framing would detract from the PA’s focus on ending the occupation.  “Apartheid is not the right terminology to use,” because we don’t “have ethnic domination of one over another.  It is not about Israelis and Palestinians living happily ever after in one land.  It is about ending the occupation.”  Apartheid, like BDS, is “derailing from our struggle as Palestinians ending the occupation.”  Indeed, it does appear that the more one is wedded to the old Two State Solution paradigm and the separation of the two peoples, the less one is anxious to name and frame the oppression as apartheid.  

But if the Two State Solution is dead, then the only choice is between the current one-Jewish ethno-state apartheid reality, run by and for Jews, continuing forever, and some form of one shared democratic state, in which both peoples share sovereignty and citizenship, equal rights and human dignity. And the critical question for the Palestinian liberation and solidarity movements then becomes:  how do we get from here to there?  How do we think about getting from an apartheid regime to One Democratic State  What is the scenario by which one democratic state can be achieved?  And what tactics and strategies do we promote, both for Palestinians and those in solidarity with them?  I think that is the $64,000 Question, and I have yet to hear or read a good answer from anyone.  But we sorely need one. 

With respect to my Jewish brothers and sisters, I’ve written about shame before in these pages, Jewish shame. Four years later, it is time to add another note about shame, this time, the shame of the apartheid name, rightfully affixed to the Jewish State, which purports to represent all Jews, world-wide. That shame should envelope every Jew who cares about Israel, but especially those of us in the United States and elsewhere in the West who have ever tolerated, supported, facilitated or helped finance the Jewish apartheid regime in Israel.  I do the best I can to live that shame down, every day, but when one realizes that Israel is only the country on earth that today commits a continuous crime against humanity by running an Apartheid regime, not just in one province, not only in the West Bank, not only in East Jerusalem, but also in the entire space between the River and the Sea, it is hard.  When one realizes that it is getting worse, not better, it becomes harder and harder to live it down.  I hope that the apartheid name and frame will help more of us minimize our tribalism, look more closely at our most important moral and religious principles, and join in solidarity with Palestinians, not just to liberate them, but to liberate ourselves from our roles as oppressors and apartheiders.      

Robert Herbst is a civil rights lawyer; he is co-chair of the board of ICAHD-USA and was chapter coordinator for Westchester Jewish Voice for Peace from 2014-2017