Rule of Law
Israeli Apartheid – A Conversation With John Dugard
By David Kattenburg
That awful A-word, preceded by the adjective ‘Israeli’.
Lobbyists for the ‘Jewish State’ and their political clients in the US, EU and Canada go apoplectic when they hear or read the phrase. Mainstream media avoid it like the plague. Totally taboo. Here in Canada, I’d fall in a faint if I heard the word on public radio. Now and then it comes up, causing me to reach for a chair.
Of course, groups like B’Nai Brith Canada — self-described “staunch defender of Israel” — declare the Israeli apartheid idea to be deeply antisemitic, and events like Israeli Apartheid Week to be a “hatefest.”
Most Canadian politicians agree. Prime Minister Justin Trudeau, at 3:50 in this video, decries the fearful state Israeli Apartheid Week places vulnerable Jewish students in, made to feel “unsafe” on their own campuses.
Former Ontario Progressive Conservative MPP Peter Shurman summed up the view well, back in February 2010, in response to the then-sixth annual campus event: “Israeli Apartheid Week is not a dialogue, it’s a monologue and it is an imposition of a view by the name itself—the name is hateful, it is odious,” Shurman declared.
Ostensibly further to the left, New Democratic Party legislator Cheri DiNovo shrank at the A-word. “That’s not to say there’s not a valid discussion. ‘Apartheid’ does not help the discussion,” she said. “What we like to speak about is the occupation (of Palestinian territory), the wall, other issues that face us.”
While politicians and the media shun the awful epithet, the international legal and scholarly community has no difficulty likening Israel’s system of governance in the occupied/colonized West Bank to the South African prototype, which came to an end back in 1994. Among the first legal experts to do so was South African jurist John Dugard — now the author of a new book on the subject.
Listen to my conversation with John Dugard right here:
Dugard has held this position for years. “[Elements] of [Israel’s] occupation constitute forms of colonialism and of apartheid, which are contrary to international law,” the Fort Beaufort, South Africa-born Dugard told the UN Human Rights Council, back in January 2007, in his capacity as UN Special Rapporteur on the human rights situation in the Palestinian territories occupied by Israel.
Two years later, Dugard’s conclusions were confirmed in a 300-page report published by the South African Human Sciences Research Council (HSRC), prepared by nineteen academic contributors, researchers and consultants, and edited by American political scientist Virginia Tilley.
The report concluded that “Israel, since 1967, has been the belligerent Occupying Power in the [Occupied Palestinian Territories], and that its occupation of these territories has become a colonial enterprise which implements a system of apartheid.”
In a 2013 edition of the prestigious European Journal of International Law, John Dugard and Irish academic John Reynolds advanced the argument further.
“On the basis of the systemic and institutionalized nature of the racial domination that exists, there are indeed strong grounds to conclude that a system of apartheid has developed in the occupied Palestinian territory,” Dugard and Reynolds wrote. “Israeli practices in the occupied territory are not only reminiscent of — and in some cases, worse than — apartheid as it existed in South Africa, but are in breach of the legal prohibition of apartheid.”
Most recently, in 2017, in an academic study commissioned by the United Nations Economic and Social Commission (ESCWA), Princeton University professor and ex-UN Special Rapporteur Richard Falk and Virginia Tilley concluded that “available evidence establishes beyond a reasonable doubt that Israel is guilty of policies and practices that constitute the crime of apartheid as legally defined in instruments of international law.”
The Falk-Tilley report was quickly pulled from the ESCWA website. The UN never formally repudiated or denied the report’s conclusions, however.
Beyond the academic and legal community, the idea that Israel is an apartheid state — certainly in the occupied/colonized West Bank — continues to gain traction among independent commentators, including both South Africans and Israelis. Look here and here and here and here and here.
Given the broad consensus that Israel does indeed engage in an activity akin to or matching the precise legal definition of apartheid, an obvious question must be asked: Why is openly saying so such a taboo for politicians and the media?
For sure, under the International Convention on the Suppression and Punishment of the Crime of Apartheid (November 1973) and the 1998 Rome Statute of the International Criminal Court, apartheid constitutes a war crime and a crime against humanity. Definitely not something one wants to condone, or be accused of committing.
For journalists and media hosts, the consequences of using the ‘A-word’ in Israel’s regard — suggesting that Israel practices it — can be dire.
But powerful nations routinely violate the rule of law, and forgive the gravest of legal breaches by close allies. If politicians were to publicly acknowledge and the media widely report that Israel practices apartheid, would it really make any difference? And where does the truth lie? Does Israel practice apartheid or does it not?
To answer this question, best to travel up and down Israel and its occupied territories and decide for oneself. Anyone who does so will quickly take note that Israel appears to be a single state from the River to the Sea — from the Jordan River on the east to the Mediterranean on the west, down from and including the Golan Heights, all the way to the Gulf of Aqaba, including Gaza. These are the lands the state and government of ‘Israel’, and the Israeli military, exercise absolute and unquestioning control over. This is the ‘Land of Israel’. ‘Eretz Yisrael’, as Likud founding father Menachem Begin conceived it.
This is what a large proportion of Israeli Jews believe, including lots of Israeli soldiers, what gets taught in schools, and what appears on maps in tourist shop windows.
That all the lands from the River to the Sea are rightfully Israel’s, in their entirety, has been repeated time and again by Israeli leaders. Just this past month, former army chief of staff and PM hopeful Benny Gantz declared, as reported in the Israeli publication Ha’aretz, that the Jordan Valley “will always remain under our control.”
Former Defense Minister Moshe Ya’alon concurred, stating “Anyone who understands anything about security knows that the valley has to be an inseparable part of Israel.”
Gantz and Ya’alon aren’t just boasting. Hop on a bus in West Jerusalem (inside the Green Line), head east, into the Jordan Valley, through the heart of the occupied/colonized West Bank, then north through semi-arid landscape blanketed here and there by dense green — the desert blooming — thanks to cheap or free water stolen from nearby Palestinians, past numerous Israeli agricultural enterprises, across a minor checkpoint on the Green Line and back into northern Israel ‘proper’, just below the Galilee. Are the Israelis going to give all this up? I don’t think so.
In the same Ha’aretz story, Benjamin Netanyahu is reported announcing that another 8000 settlement units will be built in Efrat, a settlement complex running like a snake from the southern edge of Jerusalem, just below Bethlehem, all the way to Etzion junction, in the heart of the southern West Bank.
“No settlement and no settler will ever be uprooted,” Netanyahu declared. “We will continue to build Efrat forever.”
Benjamin Netanyahu has been saying this for years: A Palestinian state will never, ever be formed in the lands west of the Jordan River, Israel’s veteran Prime Minister has said, time and again (whatever his allies in the US, EU and Canada insist, as they dole out cash and diplomatic support) — all those lands having been granted to Jews by God, for their exclusive use. Netanyahu and his predecessors — all of them, without exception — have put this creed into action; building settlements; consolidating and implementing their settlement enterprise; raising the settler population to a near million, vowing to double this.
So, as Israeli activist and writer Jeff Halper argues, Netanyahu and the wider Zionist establishment have gotten their way. They’ve won. They’ve staked claim over all the Land of Israel, established effective control over all of it. The West Bank (‘Judea’ and ‘Samaria’) has been effectively annexed, colonized, consigning the prospects of an authentic two-state solution to fairy tales and political speeches. And Palestinians have been warehoused inside some two hundred disconnected enclaves, and a concentration camp/ghetto soon to be unlivable.
What are the demographics of this single state Israel has created?
Well, about 13 million people live there. Roughly half (perhaps a bit fewer) are Jews, the other half are not.
Wherever Jews live, be it in Israel ‘proper’ (within the ‘Green Line’; inside Israel’s internationally recognized borders) or in the lands Israeli occupied in 1967 and has come to colonize, Jews enjoy full citizenship and national rights. The two set of rights are distinct. Anyone can be an Israeli citizen, regardless of race, creed, religion or national origin, and all Israeli citizens enjoy equal rights (in theory; more on this shortly).
On the other hand, in the Land of Israel, only Jews have national rights — the most canonical expressions of which are the right of any Jew in the world to come live in Israel, and the 2018 Nation State Law, declaring “the exercise of the right to national self-determination” as “unique to the Jewish people.”
And wherever Jews live in the ‘Jewish state of Israel’ — in the Jordan Valley or any of the mega-settlements in ‘Judea’ and ‘Samaria’ (Efrat, the Etzion block, Ma’ale Adumim, Beitar Illit, Ariel, etc), or in Tel Aviv — they are subject to one set of laws.
For Israel’s 6.5 million Palestinian inhabitants, the situation is entirely different. Some million and a half live inside Israel ‘proper’. In theory, they enjoy full citizenship rights: They can run for political office. They can vote in elections. But Israeli ‘Arabs’ have never been invited into government, even though they form twenty percent of the population. They face systematic discrimination, entrenched in dozens of laws regulating public social services, housing, job location, etc.
And they have no national rights. Their right to own or lease land is therefore sharply restricted, they are not conscripted into the army (and are thus denied a wide range of privileges arising from military service). Palestinians cannot sponsor the return to Israel of non-Jewish family members or partners.
Still, all things considered, Palestinian Israelis are the most fortunate victims of the 1947-48 Nakba.
In contrast, the other five million Palestinians residing between the Jordan River and the Mediterranean face six distinct legal and administrative regimes:
1) Palestinians living in Oslo Area ‘A’, in the West Bank, have neither citizenship nor national rights of any sort, and live under military occupation. Nominally governed by the Palestinian Authority (the Israelis exercise complete control), they are subject to arbitrary arrest and seizure by Israeli soldiers or police at any time. Their homes can be demolished, as demonstrated in Israel’s mega-demolition of eleven Palestinian buildings just outside Jerusalem limits, in Area A, last July. They must carry identity cards, and are not free to travel as they please. Only a fraction — some 60,000 — are allowed to visit Jerusalem. Anywhere they do move, they are subject to delay, harassment and humiliation at checkpoints and roadblocks.
2) Palestinians living in Oslo Areas ‘B’, and especially ‘C’ (where the settlements are), fall completely under Israeli military and police control. They are subject to arbitrary arrest and imprisonment inside Israel (in gross violation of international law), without charge. They are denied building permits (only Jews get these automatically), and unpermitted homes are subject to demolition. They are denied access to water. They are subject to forced transfer.
3) Palestinians living in East Jerusalem have the privilege of residency in that much-cherished city. But their residency can be annulled at any time (for not paying their taxes on deadline, or failing to pay a routine fine), and their movements are tightly restricted. Their homes can be demolished. Their children can be arrested in the dead of night. Municipal services provided in ample volume to Jewish neighbors are denied to them. If they wave Palestinian flags, they are likely to be seized, and possibly beaten.
4) Palestinians living in the Kafka-esque ‘seam’ zone between the Green Line (Israel’s official border) and Israel’s Separation Wall (often referred to as the ‘Apartheid’ Wall). They have neither Israeli citizenship nor national rights, and live under the strictest of military control. Towns like Qalqilya and Tulkarem are completely surrounded by Israel’s Wall, with just a narrow passage in or out that the Israelis open and shut as they please. Some seam-zone Palestinians live under lock and key — literally — in homes surrounded by chained segments of the Separation Barrier only soldiers and border cops can open.
5) Palestinians in refugee camps within West Bank cities. Although they’re free to move into town, finances often militate against this. Refugee camps straddle the three Oslo areas, and are happy hunting grounds for Israeli soldiers and police who routinely flood streets with tear gas, fire rubber bullets or live rounds, and arrest/kidnap people at will in the dead of night — very often minors.
6) No one worse off than Gazans, crowded into a 365 km² space akin to a ghetto or concentration camp; water unfit to drink; under the ostensible control of the local political faction, but subject to the complete control of the Israeli military; gunned down in their fishing boats by the Israeli navy, off the west coast; gunned down by Israeli snipers along the eastern border. Occasionally bombed in Israeli military campaigns.
Given the legal, administrative and physical landscape described above — two racial groups defined in the national canon, one systematically dominating and oppressing the other; one system of laws and regulations for the dominant group, seven for the dominated; physical separation, militarized control, coercion and enforcement, all-pervasive and systematic — how can one avoid the ‘A-Word’? After seeing it in action, with one’s own eyes?
John Dugard doesn’t. In his new book, Confronting Apartheid: A Personal History of South Africa, Namibia and Palestine (Jacana, 2012), the distinguished South African jurist compares and contrasts the system he helped dismantle with the one he confronted as UN Special Rapporteur in the occupied Palestinian territories.
Dugard’s key conclusions: Israel clearly practices apartheid in the occupied West Bank, East Jerusalem and Gaza. (not so certain within Israel ‘proper’). There, the “systematic discrimination and oppression” and “inhuman acts” associated with South African apartheid, as outlawed in the 1973 Apartheid Convention and 1998 Rome Statute, are clearly evident, he writes.
In fact, Dugard says, Israeli apartheid violates more international laws than the South African prototype.
And, in contrast to South Africa, where the government exercised a certain level of “benevolence” towards blacks (e.g. by delivering health care and university education in the townships), there’s nothing in the least benevolent about Israel’s treatment of Palestinians living under military occupation, Dugard argues. Israel leaves such charities to the international community.
John Dugard was South Africa’s leading legal opponent of white rule. As founder of the Centre for Applied Legal Studies at Johannesburg’s University of the Witwatersrand (Wits University), Dugard helped dismantle apartheid from inside court rooms and lecture halls.
After the fall of the apartheid regime, in 1994, Dugard directed the Lauterpacht Centre for International Law, at Cambridge University, and taught international law at Leiden University, in the Netherlands. He was a member of the International Law Commission, and judge ad hoc of the International Court of Justice, in the The Hague.
At the start of the second Palestinian Intifada, Dugard was appointed chair of an inquiry commission by the UN Commission on Human Rights. Between 2001 and 2008, he served as UN Special Rapporteur on the situation of human rights in the Palestinian territories occupied by Israel since 1967.
Since first concluding that Israel practices apartheid, in 2005, John Dugard has published various works on the subject. Confronting Apartheid is his latest. Readers anxious to discover his views on Israeli apartheid are urged to begin at the beginning, with his account of the South African prototype, rather than jumping ahead, as I felt compelled to do, but didn’t.
Dugard’s account of the situation in South Africa and Namibia, both scholarly and personal, is informative and engaging.
And his comparison between Namibia (formerly Southwest Africa; assigned to South African under a UN mandate, then occupied, under apartheid rule) is central to the discussion on occupied Palestine that follows.
I spoke with John Dugard at his home in The Hague, this past July. Listen to our conversation here.
All images by David Kattenburg.